Comment of the European Copyright Society on Selected Aspects of Implementing Article 17 of the Directive on Copyright in the Digital Single Market into National Law

Author:The European Copyright Society
Pages:115-131
 
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Comment of the European Copyright Society
2020
115
2
Comment of the European Copyright Society
Selected Aspects of Implementing Article 17 of the Directive
on Copyright in the Digital Single Market into National Law
by The European Copyright Society
© 2020 European Copyright S ociety
Everybody may disseminate this ar ticle by electronic m eans and make it available for downloa d under the terms and
conditions of the Digital P eer Publishing Licence (DPPL). A copy of the license text may be obta ined at http://nbn-resolving.
de/urn:nbn:de:0009-dppl-v3-en8.
Recommended citation: Europe an Copyright Society, Comment of the ECS on Ar t. 17 DSM-D, 11 (2020) JIPIT EC 115 para 1.
A. Introduction
1
The European Copyright Society (ECS) was founded in
January 2012 with the aim of creating a platform for critical
and independent scholarly thinking on European Copyright
Law. Its members are renowned scholars and academics
from various countries of the European Union, seeking to
promote their views of the overall public interest. The Society
is not funded, nor has been instructed, by any particular
stakeholders. This ECS Comment concerns the implementation
of Article 17 of the Directive on Copyright in the Digital Single
Market (DSM Directive or DSMD)1 into national law.
2
Article 17 DSMD is one of the most complex –
and most controversial2 – provisions of the new
1 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, Ofcial Journal of the European
Communities 2019 L 130, 92.
2 As to the debate during the legislative process (at
the time concerning Article 13 of the proposed new
copyright legislation), see Martin R.F. Senftleben/
Christina Angelopoulos/Giancarlo F. Frosio/Valentina
Moscon/Miguel Peguera/Ole-Andreas Rognstad, “The
Recommendation on Measures to Safeguard Fundamental
Rights and the Open Internet in the Framework of the EU
Copyright Reform”, European Intellectual Property Review 40
(2018), 149; Christina Angelopoulos, “On Online Platforms
and the Commission’s New Proposal for a Directive on
Copyright in the Digital Single Market”, available at: https://
papers.ssrn.com/sol3/papers.cfm?abstract_id=2947800;
Giancarlo F. Frosio, “From Horizontal to Vertical: An
Intermediary Liability Earthquake in Europe”, Oxford
Journal of Intellectual Property and Practice 12 (2017), 565-575;
legislative package which EU Member States must
transpose into national law by 7 June 2021.3 Seeking
to contribute to the debate on implementation
options, the following Comment addresses several
core aspects of Article 17 DSMD that may play an
important role in the national implementation
process.
Giancarlo F. Frosio, “Reforming Intermediary Liability in
the Platform Economy: A European Digital Single Market
Strategy”, Northwestern University Law Review 112 (2017),
19; R.M. Hilty/V. Moscon V. (eds.), “Modernisation of the
EU Copyright Rules – Position Statement of the Max Planck
Institute for Innovation and Competition”, Max Planck
Institute for Innovation and Competition Research Paper No. 17-
12, Max Planck Institute for Innovation and Competition:
Munich 2017; R.M. Hilty/V. Moscon, “Contributions by
the Max Planck Institute for Innovation and Competition
in Response to the Questions Raised by the Authorities of
Belgium, the Czech Republic, Finland, Hungary, Ireland and
the Netherlands to the Council Legal Service Regarding
Article 13 and Recital 38 of the Proposal for a Directive on
Copyright in the Digital Single Market”, available at: http://
www.ip.mpg.de/; CREATe et al., “Open letter to Members of
the European Parliament and the Council of the European
Union”, available at: http://www.create.ac.uk/policy-
responses/eu-copyright-reform/; E. Rosati, “Why a Reform
of Hosting Providers’ Safe Harbour is Unnecessary Under
EU Copyright Law”, CREATe Working Paper 2016/11 (August
2016), available at: https://ssrn.com/abstract=2830440; S.
Stalla-Bourdillon/E. Rosati/M.C. Kettemann et al., “Open
Letter to the European Commission – On the Importance of
Preserving the Consistency and Integrity of the EU Acquis
Relating to Content Monitoring within the Information
Society”, available at: https://ssrn.com/abstract=2850483.
3 Article 29(1) DSMD.
2020
The European Copyright Society
116
2
3 Section B provides an executive summary. Section
C deals with the concept of online content-
sharing service providers (OCSSPs)
4
before section
D embarks on a discussion of the licensing and
content moderation duties which OCSSPs must full
in accordance with Article 17(1) and (4). Section E
focuses on the copyright limitations mentioned
in Article 17(7) that support the creation and
dissemination of transformative user-generated
content (UGC). It also discusses the appropriate
conguration of complaint and redress mechanisms
set forth in Article 17(9) that seek to reduce the risk
of unjustied content removals. Section F addresses
the possibility of implementing direct remuneration
claims for authors and performers. Finally, section
G includes the private international law aspect
of applicable law – an impact factor that is often
overlooked in the debate.
B. Executive Summary
4
Member States implementing Articles 2(6) and 17
DSMD should make clear in their legislation or in the
ofcial memorandum that simple sharing services
which offer users the mere function of uploading
materials for the download of specic other users
are not held liable for copyright infringement in
accordance with Article 17(1), (4) DSMD. Since the
level of control and advantages taken from uploaded
content are much less intensive for those simple
services than for “online content-sharing service
providers” (OCSSPs) in the sense of Article 2(6) DSDM
which organise and promote the materials uploaded
by their users, Member States should continue to
apply the general rules for secondary liability
combined with a notice-and-take-down approach
to the simple sharing services. In this regard, the
safe harbour rules for hosting services laid down in
Article 14 E-Commerce Directive, the ban of general
monitoring obligations in Article 15 E-Commerce
Directive and the fundamental freedoms of sharing
service providers must be respected without
restrictions of any kind.
5
The licensing and monitoring duties of OCSSPs under
Article 17(1), 17(4)(a) and (c) DSMD should be applied
gradually. If in case of Article 17(1) a licence agreement
has already been concluded between the OCSSP and a
rightholder, there are no further duties (scenario 1).
In the absence of a licensing agreement, the OCSSP
is obliged by Article 17(4)(a) to make “best efforts to
obtain an authorisation”. The specic requirements
of “best efforts,” however, should depend on the
obviousness of the protectability of materials and
on how publicly known the rightholders are. In case
of obviously protected material and publicly known
4 See the denition in Article 2(6) DSMD.
rightholders, OCCSPs should be obliged to actively
contact rightholders and offer serious negotiations
on licensing terms (scenario 2). In case of non-
obvious materials or rightholders, they can remain
passive until rightholders give notice. Upon receipt
of a notice, OCCSPs must react immediately and
enter into negotiations (scenario 3).
6
Considering the nal wording of Article 17(4)(b),
Member States should adopt a technology-neutral
approach to measures that ensure the unavailability
of works on online content platforms. This approach
may include ltering technologies as long as
they represent the best efforts and high industry
standards of professional diligence. However, the
approach should also allow courts to oblige OCSSPs
to use different technical (or other) means once they
are available on the market.
7
In implementing the copyright limitations that
should survive the introduction of content
moderation mechanisms in accordance with
Article 17(7) DSMD, Member States can benet from
guidance which the CJEU has already provided with
regard to the concepts of “quotation” and “parody.”
(p. 11) These copyright limitations constitute user
rights that strike a balance between copyright
protection and freedom of expression. This rationale
is particularly relevant to transformative UGC that
reects a sufcient degree of creative effort of the
user. As long as UGC is the result of creative efforts
that add value to underlying source material,
user-generated remixes and mash-ups of third
party content can be qualied as a specic form of
transformative use falling under Article 11 CFR and
Article 10 ECHR.
8 Implementing Article 17(7), Member States should
take a fresh look at the concept of “pastiche” and
clarify that the exemption of pastiches is intended
to offer room for UGC. This approach offers Member
States several options to regulate the scope of a UGC
exemption. With regard to UGC that constitutes a
“genuine” mix of styles and materials in the sense of
an artistic “pastiche” that sufciently plays with all
underlying source materials, a mere clarication may
sufce that the exemption of “pastiche” is intended
to offer breathing space for UGC. Alternatively,
Member States can decide to broaden the concept
of “pastiche” to encompass not only uncontroversial
pastiche scenarios with a “genuine” mix of styles and
materials but also “non-genuine” forms of mixing
pre-existing content, such as the combination of
a self-created animal video with protected third-
party music. With regard to this potential extension
of the scope of the “pastiche” concept, it seems
worth considering an obligation for OCSSPs to pay
equitable remuneration.
9
It is advisable to make the submission of a complaint

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