Fixing Copyright Reform: A Better Solution to Online Infringement

Author:Christina Angelopoulos - João Pedro Quintais
Position:Lecturer in Intellectual Property at the Centre for Intellectual Property and Information Law (CIPIL) of the University of Cambridge - Postdoctoral Researcher and Lecturer at the Institute for Information Law (IViR) of the University of Amsterdam
Pages:147-172
SUMMARY

The newly-adopted Directive on Copyright in the Digital Single Market (DSMD) will fundamentally reshape EU copyright law. Among its most controversial offerings is Article 17, the socalled "value gap" provision, aimed at solving the alleged mismatch between the value that online content- sharing platforms extract from creative content and the revenue returned to the copyright-holders. This... (see full summary)

 
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Fixing Copyright Reform
2019
147
2
Fixing Copyright Reform
A Better Solution to Online Infringement
by Christina Angelopoulos and João Pedro Quintais*
© 2019 Christina Angelopoulos and João Pe dro Quintais
Everybody may disseminate this ar ticle by electronic means and make it available for download under the terms and
conditions of the Digital P eer Publishing Licence (DPPL). A copy of the license text may be obtain ed at http://nbn-resolving.
de/urn:nbn:de:0009-dppl-v3-en8.
Recommended citation: Chris tina Angelopoulos and João Pedro Quintais , Fixing Copyright Reform: A Bet ter Solution to Online
Infringement, 10 (2019) JIPITEC 147 para 1.
Keywords: Copyright; enforcement; ‘value gap’; intermediaries; end-user rights; compensation
disseminate copyright-protected content. The cur-
rent outdated and fragmented EU legal framework
is ill-equipped to address these problems. Instead, it
creates legal uncertainty for users and intermediaries
in the online environment, while also failing to com-
pensate creators fairly. The new rules will not change
this. This article examines the pre-DSMD acquis and
proposes a better solution than Article 17, consist-
ing of two key changes: (a) the introduction of a har-
monised EU framework for accessory liability for third
party copyright infringement; and (b) the adoption of
an alternative compensation system for right-hold-
ers covering non-commercial direct copyright use by
the end-users of certain online platforms.
Abstract: The newly-adopted Directive on
Copyright in the Digital Single Market (DSMD) will
fundamentally reshape EU copyright law. Among
its most controversial offerings is Article 17, the so-
called “value gap” provision, aimed at solving the al-
leged mismatch between the value that online con-
tent-sharing platforms extract from creative content
and the revenue returned to the copyright-holders.
This article argues that the new rules are misguided,
misconceiving the real problems afflicting modern
copyright. These are the proliferation of copyright in-
fringement online in general – not only through con-
tent-sharing platforms – and the current piecemeal
harmonisation of the rules on the liability of the in-
termediaries whose services are used to access and
A. Introduction
1
In September 2016, the European Commission
published its proposal for a new Directive on
Copyright in the Digital Single Market (DSMD).1 The
proposal was controversial from the start. Almost
every step of the legislative process was the subject
* Christina Angelopoulos is a Lecturer in Intellectual Property
at the Centre for Intellectual Property and Information Law
(CIPIL) of the University of Cambridge, cja58@cam.ac.uk.
João Pedro Quintais is a Postdoctoral Researcher and
Lecturer at the Institute for Information Law (IViR) of the
University of Amsterdam, j.p.quintais@uva.nl. The authors
are listed in alphabetical order, and contributed equally to
the development of ideas and to the writing of the article.
ORCID: <http://orcid.org/0000-0001-6462-2392>.
1 Proposal for a Directive of the European Parliament and
of the Council on copyright in the Digital Single Market
(COM(2016)593).
of intense lobbying and debate, up until the nal text
was approved in 2019.2
2
Among the more controversial offerings of the
Directive is Article 17 (13 in earlier drafts) on the “[u]
se of protected content by online content-sharing
service providers”. Although neither the Explanatory
Memorandum nor the Impact Assessment to the
2 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 [hereinafter: “DSM Directive”
or “DSMD”]. For a timeline of the EU Copyright reform
process, see CREATe, ‘EU Copyright Reform, Timeline of
Developments’ <www.create.ac.uk/policy-responses/eu-
copyright-reform/> accessed 26 April 2019. For an overview
of the DSM Directive, see JP Quintais, ‘The New Copyright
in the Digital Single Market Directive: A Critical Look’ (24
July 2019) EIPR (forthcoming) <http://dx.doi.org/10.2139/
ssrn.3424770>.
2019
Christina Angelopoulos and João Pedro Quintais
148
2
Directive explicitly use the term, it is widely accepted
that the main driver behind Article 17 is what has
become known as the “value gap”, i.e. the alleged
mismatch between the value that online sharing
platforms extract from creative content and the
revenue returned to the copyright-holders.
3
Article 17 regulates “online content-sharing service
providers” (OCSSPs). These are dened as service
providers with a prot-making purpose that store
and give the public access to large numbers of
copyright works uploaded by their users, which they
organise and promote. This applies not only to well-
known platforms, like YouTube, Facebook or Vimeo,
but also to any type of user-upload platform that ts
this broad denition and is not expressly excluded.3
The provision changes existing law by stating that
such platforms carry out acts of communication to
the public when they give access to works uploaded
by their users.4 These platforms are therefore made
primarily liable for their users’ uploads. Under the
new Directive, OCSSPs no longer benet in relation
to such uploads from the hosting safe harbour, which
was previously available to many of them.5
4
Platforms that fall under this regime have two
options. First, they may obtain authorisation
from the right-holders by concluding a licensing
agreement for the content uploaded by users.6 This
is problematic, as it’s nearly impossible to envision
a scenario where a platform of this type can obtain
all the required licences for the potentially millions
of works uploaded by their users.7 The second
option provided is therefore likely to be heavily
relied upon. According to this, platforms can
avoid liability if they meet a number of cumulative
conditions/requirements. They must demonstrate
that they have: (a) made best efforts to obtain an
authorisation; (b) made best efforts to ensure the
unavailability of specic works for which the right-
holders have provided them with the relevant and
necessary information; and (c) acted expeditiously,
subsequent to a notice by the right-holders, to take
3 Art. 2(6) DSMD. The denition contains a non-exhaustive
list of exclusions, including: not-for prot online
encyclopaedias, not-for-prot educational and scientic
repositories, open source software developing and sharing
platforms, electronic communication service providers,
online marketplaces and certain storage cloud services.
4 Art. 17(1) DSMD. NB that Recital 64 states – incorrectly in
our view – that this provision is a clarication of existing
law.
5 Art. 17(3) DSMD, explicitly excluding the application of Art.
14(1) ECD.
6 According to Art. 17(2) DSMD, that authorisation will
extend to uploading users, provided their activities are non-
commercial.
7 M Senftleben, “Bermuda Triangle – Licensing, Filtering
and Privileging User-Generated Content Under the New
Directive on Copyright in the Digital Single Market” E.I.P.R.
2019, 41(8), 480, 481.
down or disable access to infringing content and
made best efforts to prevent its future upload.8
5
Many commentators argued during the legislative
process that the obligations introduced by Article
17 would be incompatible with pre-existing
EU directives, as well as with the EU Charter of
Fundamental Rights,9 as interpreted by the CJEU.10
In order to ensure the unavailability of works and
escape liability, platforms will be obliged to examine
all uploaded content to ensure that it does not
infringe copyright in works listed by right-holders
and remove that which does. Given the immense
amounts of content that many platforms store,
in practice this will involve the use of automatic
content recognition technologies, otherwise
known as “upload lters”. Critics point out that,
whether done manually or through automated
tools, such checks will require general monitoring,
an outcome incompatible with earlier law11 and
which the directive explicitly rejects.12 Crucially,
in its case law, the CJEU has also stated that broad
ltering measures would be in violation of platforms’
freedom to conduct a business, as well as users’
rights to the protection of personal data and freedom
of expression.13
8 Art. 17(4) DSMD.
9 Charter of Fundamental Rights of the European Union, O.J.
2016, C 364/01 [hereinafter: ‘Charter’].
10 See e.g. S Stalla-Bourdillon et al., ‘A Brief Exegesis of the
Proposed Copyright Directive’ (24 November 2016) <https://
ssrn.com/abstract=2875296> accessed 26 April 2019 and M
Senftleben et al., ‘The Recommendation on Measures to
Safeguard Fundamental Rights and the Open Internet in the
Framework of the EU Copyright Reform’ 40(3) (2018) EIPR
149-163; C Angelopoulos, ‘Study on Online Platforms and
the Commission’s New Proposal for a Directive on Copyright
in the Digital Single Market’ (January 2017) <https://ssrn.
com/abstract=2947800> accessed 26 April 2019.
11 See Art. 15 Directive 2000/31/EC of the European Parliament
and of the Council of 8 June 2000 on certain legal aspects
of information society services, in particular electronic
commerce, in the Internal Market (Directive on Electronic
Commerce) [2000] OJ L 178/1.
12 See Art. 17(8) and Recital 66 DSMD. Despite this it is not clear
how infringing works are to be located without the platform
monitoring all posted content. Recital 66 does suggest that
“in some cases” the availability of unauthorised content
may “only be avoided upon notication of rightholders”.
This presumably means that in other cases it will be for
the intermediary to nd infringements through general
checks. For further criticism, see e.g. M Senftleben,
“Bermuda Triangle – Licensing, Filtering and Privileging
User-Generated Content Under the New Directive on
Copyright in the Digital Single Market” E.I.P.R. 2019,
41(8), 480-490 and Communia Association, ‘A Final X-Ray
of Article 13: Legislative Wishful Thinking that Will Hurt
User Rights’ (COMMUNIA, 5 March 2019) <https://www.
communia-association.org/2019/03/05/nal-x-ray-article-
13-dangerous-legislative-wishful-thinking/> accessed
26 April 2019.
13 Case C-70/10, Scarlet Extended (24 November 2011)
ECLI:EU:C:2011:771; Case C-360/10, Netlog (16 February 2012)
ECLI:EU:C:2012:85, [41]–[43], [48], [50]–[51]; Case C-484/14,

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