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

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