Fixing Copyright Reform: A Better Solution to Online Infringement

Document

Cited in

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

Fixing Copyright Reform

2019

147

Fixing Copyright Reform

A Better Solution to Online Infringement

by Christina Angelopoulos and João Pedro 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rent outdated and fragmented EU legal framework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

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

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

In September 2016, the European Commission

published its proposal for a new Directive on

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: .

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

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’

of the DSM Directive, see JP Quintais, ‘The New Copyright

in the Digital Single Market Directive: A Critical Look’ (24

July 2019) EIPR (forthcoming)

ssrn.3424770>.

2019

Christina Angelopoulos and João Pedro Quintais

148

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.

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

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

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

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)

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)

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

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)

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,

Fixing Copyright Reform

2019

149

To avoid the negative effects of such obligations, the

provision requires platforms to ensure lters will

not prevent the availability of works which do not

infringe copyright. This would include uses covered

by an exception or limitation, such as those for the

protection of quotation, criticism, review, caricature,

parody, or pastiche.14 Unfortunately, existing

content recognition technologies are incapable of

accommodating such dynamic and context-specic

exceptions. Human review is unlikely to help much,

unless undertaken by judges. The result will be

that many otherwise lawful uses will be blocked.15

Although the DSMD does require that platforms

implement complaint and redress mechanisms for

users, these are unlikely to mitigate these effects in

any meaningful way, since these mechanisms are

typically ineffective.

Article 17 also incorporates

some safeguards for providers’ freedom to conduct

a business, in the form of factors to be taken into

account in determining whether an OCSSP has

complied with its obligations.

Whether these are

sufcient will be a question for the courts. Finally,

while the Directive does explicitly state that it should

not lead to the unlawful processing of personal

data,18 it is not obvious how the ltering that Article

17 incentivises can avoid that outcome.19

In addition to these shortcomings, this article

suggests that Article 17 suffers from a more

fundamental weakness: it is based on a misconception

of the real problem aficting EU copyright law, i.e.

the proliferation of copyright infringement online

in general, not only through Web 2.0 hosts. This

problem is compounded by an increasingly outdated

EU copyright framework that allows infringing

end-users to hide behind their online anonymity,

while failing to provide any mechanism for the

compensation or remuneration of right-holders for

McFadden, (15 September 2016) ECLI:EU:C:2016:689. See

also C Angelopoulos, ‘Study on Online Platforms and the

Commission’s New Proposal for a Directive on Copyright

in the Digital Single Market’ (January 2017)

com/abstract=2947800> accessed 26 April 2019.

14 Art. 17(5) DSMD.

15 See 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, 484-485. See also E Engstrom and N Feamster,

‘The Limits of Filtering: A Look at the Functionality and

Shortcoming of Content Detection Tools’ (Engine, March

2017) .

16 Art. 17(8) DSMD. On the ineffectiveness of complaint and

redress mechanisms in this context, see J Urban, J Karaganis

& B Schoeld, ‘Notice and Takedown in Everyday Practice’

(March 2016) UC Berkeley Public Law Research Paper No.

2755628, , 57-62.

17 See Art. 17(4) DSMD.

18 See Art. 17(9) DSMD.

19 Consider in this regard, Case C360/10, SABAM v Netlog (16

February 2012) ECLI:EU:C:2012:85, [49].

the infringements these users commit.20 Faced with

this impasse, right-holders have shifted their focus

to internet intermediaries. Yet, while the CJEU’s

recent case law has waded into the tricky area of

intermediary liability, no complete system of rules

determining what obligations intermediaries have

to prevent or remove online copyright infringement

currently exists at the EU level.

Absent a more stable legal basis, targeted

superstructure initiatives such as the new directive

are set up for failure. At best they can improve a

small part of a larger problem and at worst introduce

signicant legal uncertainty. If EU copyright law is

to be reformed, it is on the above crucial weak spots

that proposals should focus. This article proposes an

alternative approach to Article 17, intended to better

target these weak spots. Based on our pre-existing

research into the areas of intermediary liability and

pronged proposal, consisting of: (a) the introduction

of a harmonised EU framework for accessory liability

for third party copyright infringement; and (b) the

adoption of an alternative compensation system

for right-holders covering non-commercial direct

platforms.21 As we explain, this solution avoids the

difculties encountered by Article 17 DSMD, while

successfully targeting the copyright framework’s

real failings.

The article progresses in the following manner. Part

B begins with a descriptive account of the relevant

pre-DSMD EU law on copyright, in particular the

Information Society Directive (InfoSoc Directive)

and the E-Commerce Directive (ECD),23 as interpreted

by the CJEU. Part C moves on to the article’s

normative offering: our proposed alternative

approach to copyright reform. Here, each of the

proposal’s two components are analysed in detail.

Part D concludes with a brief pragmatic assessment.

20 For a distinction between the concepts of fair compensation

and (equitable) remuneration in EU copyright law, see infra

at C.II.2.

21 For further information, see: C Angelopoulos, European

Intermediary Liability in Copyright: A Tort-Based Analysis

(Kluwer Law International 2016) and JP Quintais, Copyright

in the Age of Online Access: Alternative Compensation Systems in

EU Law (Kluwer Law International 2017).

22 Directive 2001/29/EC of the European Parliament and of

the Council of 22 May 2001 on the harmonisation of certain

aspects of copyright and related rights in the information

society [2001] OJ L167/10 [hereinafter InfoSoc Directive].

23 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 [hereinafter ECD].

2019

Christina Angelopoulos and João Pedro Quintais

150

B. Identifying the Real Problems:

Two Crucial Weaknesses of

the Current Copyright Acquis

Before a solution to the problem of online copyright

infringement can be devised, a proper understanding

of the current legal framework governing the issue

is necessary. Such an understanding can enable the

identication of that framework’s failings: if online

is the current law struggling to address this? Once

the law’s weak points have been located, targeted

solutions can be deployed. This section examines

the pre-DSMD EU copyright framework from two

perspectives: rstly, the legal position of individual

infringers and, secondly, the legal position of the

intermediaries whose services such infringers use.

In this way, the inadequacies of the current rules’

response to the two main contributors to modern

online copyright infringement can be identied.

I. The Precarious Position

of Individual Users

The rst crucial weakness of the current acquis is

found in the precarious position in which it places

individual users. The everyday practices of such

users on the Internet involve a diverse array of

acts, including browsing, downloading, streaming,

stream ripping, uploading, and hyperlinking.

These activities may involve making copies of and

disseminating copyright-protected content online

and, as a result, trigger the application of the

exclusive rights of reproduction and communication

to the public, as harmonised by Articles 2 and 3 of

the InfoSoc Directive.

12 In particular, following CJEU decisions, the right of

reproduction applies to the online consumption,

manipulation and dissemination of content by

end-users, as these activities require the making of

digital copies.

This broad interpretation may be

questioned, with commentators suggesting that it

is inappropriate for the digital age.25 Concerning

24 JP Quintais, Copyright in the Age of Online Access: Alternative

Compensation Systems in EU Law (Kluwer Law International

2017) 163–164. Leading CJEU cases in this respect include

C-5/08, Infopaq I (16 July 2009), ECLI:EU:C:2009:465;

C-403/08, Football Association Premier League (4 October

2011), ECLI:EU:C:2011:631; and C-419/13, Art & Allposters (22

January 2015), ECLI:EU:C:2015:27.

25 See e.g. A Strowel, “Reconstructing the Reproduction and

Communication to the Public Rights: How to Align Copyright

with its Fundamentals” and S Dusollier, “Realigning

Economic Rights with Exploitation of Works: the Control of

Authors over the Circulation of Works in the Public Sphere”

in PB Hugenholtz (ed.), Copyright Reconstructed: Rethinking

the right of communication to the public, the Court

has developed a complex set of criteria.26 In simple

terms, a use will amount to a communication to

the public if it meets two cumulative conditions.

It must constitute: (a) an “act of communication”,

that is made to (b) “the public”. To this effect, the

Court carries out an “individualised assessment” of

several “autonomous and interdependent” criteria

in light of the circumstances of each case.27 Among

others, the Court looks at the “role of the user”,

his “deliberate/intentional intervention” and

whether the communication at stake is through a

“separate”/“specic” technical means or directed

at a “new public”.28 Cumulative audiences amount

to a “public”, as long as they are not “insignicant”.

Finally, whether or not the “communication” is of

a prot-making nature also has to be considered.29

These criteria do not always neatly apply to the

online use of content, a problem compounded by the

fact that the legal status of certain acts may depend

on the imposition of contractual and technical

restrictions by right-holders.30 For example, it is

not currently clear whether sharing a work with

a restricted group of “friends” on a social network

would amount to a communication to the public.

Moreover, as the CJEU expands and contracts the

scope of the right from case to case, greater exibility

might be injected into judicial deliberations, but end-

users themselves are placed on legal quicksand.

13 Ultimately, as a result of the EU legal framework on

reproduction and communication to the public, a

signicant number of individuals’ online activities

either prompt the application of exclusive rights or

are legally ambiguous. In principle, the reproduction

right applies to browsing, downloading, the

reception of streams from unauthorised sources,

stream ripping, certain uploads, and the making of

digital adaptations. The right of communication to

the public is relevant for the online transmission of

streams, uploading to publicly accessible websites,

and many types of hyperlinking.31

Technological and Economic Change (Wolters Kluwer 2018)

204-206 and 166-169.

26 JP Quintais, ‘Untangling the Hyperlinking Web: In Search

of the Online Right of Communication to the Public’ (2018)

21(5-6) J. World Intell. Prop. 385.

27 See Case C-135/10, SCF (15 March 2012) ECLI:EU:C:2012:140,

[76]-[79]; Case C-162/10, Phonographic Performance (Ireland)

(15 March 2012) ECLI:EU:C:2012:141, [29].

28 JP Quintais, JP, ‘Untangling the Hyperlinking Web: In Search

of the Online Right of Communication to the Public’ (2018)

21(5-6) J. World Intell. Prop. 385.

29 See, for all, Case C-117/15, Reha Training (31 May 2016)

ECLI:EU:C:2016:379.

30 T Dreier, ‘Thoughts on Revising the Limitations on

31 JP Quintais, Copyright in the Age of Online Access: Alternative

Compensation Systems in EU Law (Kluwer Law International

2017) 152-244.

Fixing Copyright Reform

2019

151

14 Of course, even where exclusive rights apply, a use

may nevertheless be allowed by the exceptions

set out in Article 5 of the InfoSoc Directive. This,

however, is not generous to users, as it excludes

rights in software and databases, denes most

exceptions as optional for Member States,32 and

allows limitations to be overridden by contract,

as well as the use of technological protection

measures.

The EU case law on exceptions mostly

follows the canon of strict interpretation, meaning

that their scope is narrowly dened.34 The result is

that existing exceptions provide little coverage for

the online practices of users.

Finally, little relief can be found in the legal

regulation of digital adaptations. At the EU level,

there is no harmonised right of adaptation. National

law may contain a separate right of adaptation, as

well as exceptions providing breathing space for the

making and dissemination of derivative works.

But

such space can only be limited for two reasons. First,

the broad interpretation of the harmonised exclusive

right of reproduction by the CJEU causes it to extend

to most literal and non-literal reproductions that

form part of the derivative work. Second, where

that is the case, the narrow interpretation of the

harmonised exceptions (quotation, incidental

inclusion, and parody) excludes their application to

many digital adaptations.36 Thus, to create such a

space, legislative reform at EU level is needed, e.g.

through the creation of a specic exception for user-

generated content.37

32 See however Art. 17(7) and Recital 70 DSMD, which suggest

that the exceptions for quotation, criticism, review,

caricature, parody or pastiche should be made mandatory.

33 On the general structure and functioning of Art. 5,

see L Guibault, ‘Why Cherry-Picking Never Leads to

Harmonisation: The Case of the Limitations on Copyright

under Directive 2001/29/EC’ 1 (2010) JIPITEC 55.

34 Case C-5/08, Infopaq I (16 July 2009) ECLI:EU:C:2009:465, [56]–

[57]; Case C-145/10, Painer (7 March 2013) ECLI:EU:C:2013:138,

[109], [133]; Cases C-403/08 and C-429/08, Football Association

Premier League (4 October 2011) ECLI:EU:C:2011:631, [162];

Case C-360/13, Public Relations Consultants Association (5 June

2014) ECLI:EU:C:2014:1195, [23]. See also Janssens (2009)

323 (considering the doctrine of strict interpretation to

be a common view point in international norms) and M

Senftleben, ‘Breathing Space for Cloud-Based Business

Models’ (2013) 4 JIPITEC 93.

35 PB Hugenholtz and M Senftleben, Fair Use in Europe: In Search

of Flexibilities (Institute for Information Law/VU Centre for

Law and Governance 2011).

36 For an extensive analysis see J-P Trialle and others, ‘Study

on the Application of Directive 2001/29/EC on Copyright

and Related Rights in the Information Society (the “InfoSoc

Directive”) (Directorate-General for the Internal Market

and Services’ (European Commission, 2013).

37 See JP Quintais, ‘Rethinking Normal Exploitation: Enabling

Online Limitations in EU Copyright Law’ 41 (2017) 6 AMI:

Tijdschrift voor Auteurs-, Media- & Informatierecht,

197-205, proposing the introduction of a mandatory and

unwaivable limitation for user-generated content. See also

As a result of the above, the current framework

leaves individual users in a precarious legal position,

while seemingly also conicting with the objectives

of EU copyright law.38 It does not promote legal

certainty, the smooth functioning of the internal

market, the development of new technologies,

or foster the circulation of culture. It erodes the

legitimacy of copyright law by divorcing it from

social norms. Finally, assuming that a signicant

number of online infringments by individuals is

unenforceable – either de facto or due to limits

imposed by fundamental rights39 – the expansion of

exclusivity in the online environment fails to ensure

an appropriate remuneration to right-holders for

the (unauthorised) use of works and, consequently,

an adequate level of protection:40 right-holders may

be protected, but only in theory.

II. The Partial Harmonisation

of Intermediary Liability

Most online copyright infringements are not

performed by persons relying exclusively on their

own technical capabilities. Instead, they use the

services of internet intermediaries. In addition

to that of individual users therefore, a second

signicant question concerns the liability of the

providers of such services. When should they be held

liable for copyright infringements committed by

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, 485-490.

38 On these objectives as interpreted by the CJEU, see the

empirical analysis of M Favale and others, ‘Is There an EU

Workings of the European Court of Justice’ (2016) 79 The

Modern L. Rev. 31.

39 The argument is developed in detail in JP Quintais, Copyright

in the Age of Online Access: Alternative Compensation Systems

in EU Law (Kluwer Law International 2017). See also C

Geiger, ‘Challenges for the Enforcement of Copyright in the

Online World: Time for a New Approach’ in P Torremans

(ed.), Research Handbook on the Cross-Border Enforcement of

Intellectual Property (Edward Elgar 2014) 704 and C Geiger,

‘Statutory Licenses as Enabler of Creative Uses’ in RM Hilty

and K-C Liu (eds.), Remuneration of Copyright Owners (Springer

2017) 305-327.

40 The connection between a “high level of protection”,

creative incentives and “adequate remuneration” for right-

holders is patent in Recitals 9 and 10 InfoSoc Directive.

For the use of “fair balance” and “adequate protection”

by the CJEU as teleological arguments to limit a broad

interpretation of rights in the copyright acquis, see M

Favale and others, ‘Is There an EU Copyright Jurisprudence?

An Empirical Analysis of the Workings of the European

Court of Justice’ (2016) 79 The Modern L. Rev. 31, 65–68. On

the disconnect between EU copyright law and social norms,

see PB Hugenholtz and M Senftleben, ‘Fair Use in Europe:

In Search of Flexibilities’ (Institute for Information Law/VU

Centre for Law and Governance 2011) 26-28.

2019

Christina Angelopoulos and João Pedro Quintais

152

end-users employing their services? At the moment,

no complete EU system on intermediary liability in

Prior to the adoption of the new directive, the

most relevant EU provisions were the so-called

“safe harbours”. These are conditional immunities

introduced in the E-Commerce Directive (ECD) that

shield intermediaries from liability under specic

circumstances. While the safe harbours do not

harmonise intermediary liability per se, they do set

limits to its application. For the purposes of this

article, the hosting safe harbour of Article 14 ECD

is especially relevant. This provides protection to

intermediaries that store information posted by

third parties, as long as the host does not have actual

or constructive knowledge that the information is

illegal or, upon obtaining such knowledge, removes

it.41 Many of Article 17’s OCSSPs had been presumed

to be covered by the provision.

Complementing the safe harbours, Article 15(1) ECD

prohibits Member States from imposing general

obligations on protected providers to monitor the

information that they transmit or store, or to seek

facts or circumstances indicating illegal activity.

In combination with Article 14, this results in the

effective introduction into EU law of what is known

as a “notice-and-takedown” (NTD) regime, i.e. a

system that obliges hosting providers to remove

infringements after receiving notication of their

illegality or lose the safe harbour.

20 Importantly, even if a platform enjoys safe harbour

protection, this will not necessarily mean that

no action can be taken against it. Article 8(3) of

the InfoSoc Directive instructs Member States to

ensure that injunctions remain available against

intermediaries whose services are used by third

parties to infringe copyright or related rights. The

general monitoring prohibition of Article 15(1) ECD

sets limits here as well. The provision has been

interpreted by the CJEU as excluding injunctions

obliging intermediaries to monitor actively all the

data they transmit or store.42

The CJEU has also approached the issue of

injunctions against intermediaries through the

lens of fundamental rights. The Court has held that

such injunctions involve a clash between opposing

fundamental rights. According to consistent case

law, such clashes should be resolved by the Member

States by striking a “fair balance” between all

41 To benet from the safe harbour, the host must additionally

not have had authority or control over the end-user in the

posting of the contested information (Art. 14(2) ECD).

42 Case C360/10, SABAM v Netlog (16 February 2012)

ECLI:EU:C:2012:85, [34] and Case C-484/14, McFadden, (15

September 2016) ECLI:EU:C:2016:689, [87].

relevant fundamental rights.43 As a general rule, in

cases of copyright and related rights enforcement,

a tripartite schematic focus on copyright holders,

intermediaries and internet users can be identied.

For the rst, the right to intellectual property

(Article 17(2) Charter) is at stake. Depending on

the circumstances, in the application of injunctions

this may collide with the intermediaries’ freedom to

conduct a business (Article 16 Charter). In addition,

the rights of end-users to the protection of their

personal data (Article 8 Charter), their private life

(Article 7 Charter) and their freedom to receive

and impart information (Article 11 Charter) must

be taken into account. The Court has found that

ltering obligations would not strike a ‘fair balance’

between all relevant fundamental rights.

On the

other hand, more moderate requests are more likely

to be granted.45

In addition to the above, the only harmonised

source of intermediary liability rules in EU law

can be found in the regular provisions on primary

applied to hold Internet intermediaries liable for

the infringements they perform in the same way as

any other person. Yet, in recent case law, the CJEU

has reshaped them to do something more: hold

defendants liable for infringements performed by

others. In this way, their bearing on intermediary

liability has signicantly increased.

The relevant jurisprudence has so far focused on the

right of communication to the public of Article 3 of

the InfoSoc Directive. The CJEU’s aforementioned

“individualised” approach to this right has allowed

it to gradually relax its early nding that an “act

of communication” requires an “indispensable”

intervention on the part of the defendant, such that

the relevant public would not otherwise be able to

enjoy the work.

Instead, the Court now accepts that

it is sufcient that the public would be able to do

so only with difculty.

The consequences of this

43 See Case C-275/06, Promusicae (29 January 2008)

ECLI:EU:C:2008:54, [68].

44 Case C-360/10, SABAM v Netlog, (16 February 2012)

ECLI:EU:C:2012:85, [25], [52].

45 No example of more moderate requests concerning hosting

providers have come before the CJEU. However, that

Court has found that blocking injunctions issued against

internet service providers may strike a “fair balance” (Case

C-314/12, Telekabel (17 March 2014) ECLI:EU:C:2014:192),

as will obligations for WiFi providers to password-protect

their network (see Case C-484/14, McFadden (15 September

2016) ECLI:EU:C:2016:689, [100]).

46 Case C-117/15, Reha Training (21 May 2012)

ECLI:EU:C:2016:379, [46], citing Case C-306/05, SGAE (7

December 2006) ECLI:EU:C:2006:764, [42] and Cases C-403/08

and C-429/08, Football Association Premier League (Oct 4, 2011)

ECLI:EU:C:2011:631, [195].

47 Case C-610/15, Stichting Brein v Ziggo (14 June 2017)

ECLI:EU:C:2017:456, [26].

Fixing Copyright Reform

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153

expansion are controlled through the requirement

that the relevant public be a “new” one. In the recent

hyperlinking decision of GS Media, the notion of

“new public” was connected with the defendant’s

knowledge of the infringement or prot derived

from it.48

This evolution has proved significant for

intermediary liability. In June 2017, 10 months

after the publication of the Commission’s proposal

for the new directive, GS Media’s knowledge-based

logic was applied in Ziggo to nd that the peer-to-

peer le-sharing website The Pirate Bay reaches

a “new public” and thus communicates works

to the public.

In this way, it was conrmed that

the mental element GS Media introduced is not

intended to apply exclusively to hyperlinking,

but has a wider applicability. The results could be

particularly important for the host service providers

targeted by Article 17. After all, The Pirate Bay is

in effect a host, albeit of torrent les and magnet

links, as opposed to content les – and if links can

constitute infringements, the difference between

the two is minimal. Moreover, knowingly hosting a

link to infringing content is arguably a more tenuous

connection than knowingly hosting the infringing

content itself. As commentators have observed, in

this way, the CJEU appears to have pre-empted the

EU legislator and introduced its own positively-

stated rules on intermediary liability.50

Notably, the CJEU’s approach rests on a curious

blending of the notions of primary and accessory

liability in copyright. Primary infringement occurs

where a person engages in a copyright infringement

themselves. Accessory infringement occurs where

one person participates in – i.e. acts as an accessory

to – a copyright infringement performed by another.

While knowledge is traditionally a hallmark of

accessory liability in copyright law,51 primary

infringement has always been understood to be a

48 Case C-160/15, GS Media (8 September 2016)

ECLI:EU:C:2016:644, [37] and [48]. The connection between

the ‘new public’ and knowledge was made even more explicit

in later case law, see Case C-610/15, Stichting Brein v Ziggo (14

June 2017) ECLI:EU:C:2017:456, [47]-[52] and Case C-610/15,

Stichting Brein v Ziggo (14 June 2017) ECLI:EU:C:2017:456,

[44]-[45].

49 Case C-610/15, Stichting Brein v Ziggo (14 June 2017)

ECLI:EU:C:2017:456.

50 J Ginsburg, ‘The Court of Justice of the European Union

Creates an EU Law of Liability for Facilitation of Copyright

Infringement: Observations on Brein v. Filmspeler [C-527/15]

(2017) and Brein v. Ziggo [C-610/15] (2017)’ (22 August

2017) accessed 26

April 2019; M Leistner, ‘Is the CJEU Outperforming the

Commission?’ (26 November 2017)

abstract=3077615> accessed 26 April 2019.

51 C Angelopoulos, European Intermediary Liability in Copyright: A

Tort-Based Analysis (Kluwer Law International 2016), section

1.3.1.

strict liability tort.52

26 Obfuscating the division between the two areas can

be tricky. Most obviously, the consistent requirement

of a mental element would mean turning primary

however doubtful that this was the CJEU’s intention.

What is far more likely is that the CJEU will, in future,

rely on the variable normative power it has assigned

to the multiple interdependent criteria on which it

establishes communication to the public to conclude

that the condition of knowledge is only necessary

where the infringement depends on the existence

of a prior infringement by another. That is to say,

knowledge will matter only in cases where the

defendant was acting as an accessory, as opposed to

the primary perpetrator.53

Questions however remain: what type of

involvement in the infringement of another is

sufcient? What is the appropriate mental element?

Whether the exceptions and limitations of Article 5

of the InfoSoc Directive will apply to parties whose

infringement depends on their knowledge of the

infringement is also unclear. More importantly,

although it represents a denite step in the right

direction, the CJEU’s approach stops short of the full

harmonisation of accessory liability in copyright.

If an intermediary cannot reasonably be found to

be communicating to the public, assuming no safe

harbour applies, a pan-EU solution will remain

elusive: national rules on accessory liability might

result in different outcomes for the same defendant

in different Member States.

28 Article 17 does not address these problems. For one

thing, it only applies to OCSSPs. Furthermore, its

relationship to the CJEU case law on communication

to the public is unclear. The new provision states

that OCSSPs communicate the uploads of their users

to the public. But what does this mean for the CJEU’s

careful interpretation of this right? Do the Court’s

“autonomous and interdependent” criteria remain

relevant or have they now been made redundant,

whether for OCSSPs or generally? The new rules

create more questions than they answer.54

52 See e.g. L Bently and B Sherman, Intellectual Property Law (5th

ed, Oxford University Press 2018) 143.

53 This conclusion is conrmed by the recent decision in the

primary liability case of Renckhoff, in which the Court made

no reference to knowledge. See Case C-161/17, Renckhoff (7

August 2018) ECLI:EU:C:2018:634.

54 Some light is expected to be shed on these matters through

the CJEU’s judgements in Case C-682/18, LF v Google,

Case C-683/18, Elsevier v Cyando, and C-500/19, Puls 4 TV,

currently pending.

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Christina Angelopoulos and João Pedro Quintais

154

C. A Better Way Forward: A

Two-pronged Approach to

Online Infringement

As the above analysis reveals, the current EU law

on copyright infringement has major weaknesses. It

provides little breathing space for individuals to use

protected content with legal certainty, emphasises

exclusivity and enforcement over remuneration and

has evolved into a complex legal maze regarding

the liability of online platforms. The EU legislator’s

“value gap”-driven and OCSSP-focused solution will

not solve these problems. It is likely incompatible

with existing directives and with the Charter,

increases legal uncertainty, and fails to take the

interests of creators into proper account.55

This article argues that copyright reform should

instead focus on the weaknesses identied above

in the current EU law on copyright infringement. It

recommends two mechanisms for overcoming these

weaknesses and achieving real improvement of EU

would be complementary and intended to support

each other through their parallel implementation.

The rst is the adoption of a truly harmonised EU

framework for accessory liability for copyright

infringement. The second is the introduction of

an alternative compensation system for right-

holders covering non-commercial direct copyright

infringement by end-users online, in particular in

the context of user-upload platforms.

Below, we examine how this two-pronged approach

would work and what each of these mechanisms

would contribute to the ultimate solution to

the problem of online copyright infringement.

Subsequently, the anticipated effect of their

combined adoption on the operation of EU copyright

law is briey discussed.

55 See the references cited supra in note 10. See also,

commenting on legislative proposals for the DSM Directive:

C Angelopoulos, ‘Axel Voss’s JURI Report on Article 13

Would Violate Internet Users’ Fundamental Rights’ (Kluwer

kluweriplaw.com/2018/06/29/axel-vosss-juri-report-

article-13-violate-internet-users-fundamental-rights/>,

accessed 17 April 2019; V Moscon, ‘The Council Negotiating

Position on Article 13: Warning, Creators are also Part of

the Game!!!’ (Kluwer Copyright Blog, 4 July 2018)

copyrightblog.kluweriplaw.com/2018/07/04/council-

negotiating-position-article-13-warning-creators-also-

part-game/>, accessed 17 April 2019.

I. Harmonisation of accessory

32 As Section B.II. suggests, one of the most prominent

gaps in the edice of modern European copyright

law is the lack of a harmonised regime for accessory

liability.56 In view of the ubiquity of intermediation

in internet-based communications, this omission has

become increasingly glaring. The rules of accessory

liability are those suitable to govern questions of

intermediary liability, i.e. when an intermediary

should be held liable for the infringements of third

parties (most commonly, its users). The lack of a

harmonised regime has therefore resulted in the

fragmentation of the legal framework in an area

that is particularly relevant to online infringement.

Introducing a harmonised solution would overcome

this fragmentation and create a sound legal basis

for addressing such infringement. Once adopted,

this solution could also be applied to the online

sharing platforms implicated in the “value gap”

controversy, thus providing a more theoretically

consistent solution to their liability than that offered

by Article 17.

33 As an added advantage, such harmonisation would

also help achieve greater clarity with regard to the

European rules of primary liability in copyright,

by decisively alleviating the pressures for their

over-expansive judicial interpretation. Ideally, the

harmonised framework would properly distinguish

accessory from primary liability. While the current

“blended” approach taken by the CJEU has the

advantage of enabling harmonisation through

case law, legislative intervention would make such

expediencies redundant. At the same time, lessons

can be learnt from the Court’s recent decisions in

the area. The legislator is certainly free to modify

existing EU secondary law as it sees t, as long as it

respects the Charter. Yet undercutting established

case law undermines the development of a coherent

system. Instead of grafting supervenient provisions

like Article 17 on to EU copyright law, the EU

legislator would be wise take its cue from existing

case law.

Examining this case law reveals the outline of a

convincing framework for a European accessory

traditionally copyright infringement has relied only

on the examination of the defendant’s conduct, in its

decisions on accessory liability, the CJEU has added a

new mental element. Happily, this approach accords

with the usual schematic relied upon in countries

with existing accessory liability doctrines. As a

rule, in such regimes accessory liability depends

56 Opinion of Advocate General Szpunar at [3], Case C-610/15,

Stichting Brein v Ziggo (8 February 2017), ECLI:EU:C:2017:99.

Fixing Copyright Reform

2019

155

on two essential elements: a “conduct element”

and a “mental element”.57 We suggest that a future

EU intermediary liability copyright regime should

follow a similar approach. While the rst element

should focus on whether the defendant’s behaviour

has contributed to a copyright infringement, the

second should concern their inner involvement in

the infringement, i.e. whether they demonstrated

the mindset of a culpable party. Where at least one

of these elements is absent, the defendant should

be absolved from any liability. If both are satised,

two possibilities arise: either the defendant should

immediately be held liable for the infringement;

or they are placed under an obligation to take

appropriate action.

35 Careful consideration of the right standard for both

elements is necessary, as well as of the appropriate

consequences where they are both met. Again,

the CJEU’s case law can guide the analysis. Where

ambiguity remains, other sources of legislative

inspiration should be considered. In this regard,

one important question concerns the relevance of

the ECD’s safe harbours. It may seem logical that a

well-crafted defence should do more than mirror

the provisions that determine infringement. We

suggest however that the safe harbours should not

be approached in this way. They were adopted not

to provide exceptions to the exclusive rights of

horizontal rules for the smooth functioning of the

single market.58 It is therefore appropriate to treat

them as guidelines for a future harmonised EU

accessory liability regime for copyright.59 By the

same token, Article 15 ECD, as well as the Court’s

existing case law on “fair balance” and injunctions

should also be taken into consideration. The proposal

below draws heavily from all three of these sources.

57 See e.g. PS Davies, Accessory Liability (Hart Publishing 2015).

For a comparative analysis see C Angelopoulos, European

Intermediary Liability in Copyright: A Tort-Based Analysis

(Kluwer Law International 2016), section 5.1.1.

58 See Recital 40 ECD. Indeed, Recital 40, in explaining the

purpose of the safe harbours, talks about providers’ “duty

to act under certain circumstances”, language which

does not reect the nature of the safe harbours as mere

immunities, but which might foreshadow the introduction

of substantive harmonised law.

59 J Ginsburg, ‘The Court of Justice of the European Union

Creates an EU Law of Liability for Facilitation of Copyright

Infringement: Observations on Brein v. Filmspeler [C-527/15]

(2017) and Brein v. Ziggo [C-610/15] (2017)’ (22 August 2017)

accessed 26 April

2019.

1. The Conduct Element of

Accessory Liability

36 As explained in Section B.I, the CJEU’s approach to

communication to the public has gradually evolved

over the past decade. Helpfully, recent case law

has planted the seeds for a harmonised system for

accessory liability in copyright. It can therefore be

relied upon to guide the construction of the elements

of a harmonised European accessory liability regime.

A more detailed examination is thus appropriate.

In this section, we start with the conduct element.

The Court’s decisions on the notion of an “act of

communication” are helpful in tracing this out. As

noted above, the “individualised” approach adopted

by the CJEU has allowed it gradually to relax its

approach.

Notably, the majority of the CJEU’s rulings in this

area deal with what might be termed “secondary

use”. They thus concern either retransmissions of

broadcasts by wire or wireless means (see e.g. ITV

Broadcasting, SBS Belgium, and zürs.net)60 or the playing

of phonograms or broadcasts in a public space (see

e.g. SGAE, Divani Akropolis, Del Corso, Phonographic

Performance (Ireland) and Reha Training).61 In these

cases, the Court’s analysis still remains closely tied

to the classic language of a “transmission”, that is

embedded in Recital 23 of the InfoSoc Directive.

According to this, the right of communication to

the public should not cover any acts other than

the transmission or retransmission of a work to

the public by wire or wireless means. However, a

wrinkle then appears. Starting with Svensson, cases

come before the CJEU that concern acts of secondary

use rather than secondary infringement, i.e. acts

whose infringing nature depends on the existence

of a primary infringement by another. The Court

accepted these as valid acts of communication. GS

Media, Filmspeler63 and Ziggo continued this trend,

eshing out the relevant principles.

60 Case C-607/11, ITV Broadcasting (7 March 2013)

ECLI:EU:C:2013:147; Case C-325/14, SBS Belgium (15

November 2015) ECLI:EU:C:2015:764; Case C-138/16, AKM (16

March 2017) ECLI:EU:C:2017:218.

61 Case C-306/05, SGAE (7 December 2006) ECLI:EU:C:2006:764;

Case C-136/09, Organismos Sillogikis Diacheirisis… v Divani

Akropolis (March 18, 2010 ) ECLI:EU:C:2010:151; Case

C-135/10, SCF (15 March 2012) ECLI:EU:C:2012:140; Case

C-162/10, Phonographic Performance (Ireland) (15 March 2012)

ECLI:EU:C:2012:141; Case C-117/15, Reha Training (21 May

2012) ECLI:EU:C:2016:379.

62 Note that in Phonographic Performance (Ireland), even the

provision of apparatus and phonograms was qualied as a

“transmission”. See Case C-162/10, Phonographic Performance

(Ireland) (15 March 2012) ECLI:EU:C:2012:141, [64]-[69].

63 Case C-527/15, Stichting Brein v Jack Frederik Wullems (26 April

2017) ECLI:EU:C:2017:300.

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Christina Angelopoulos and João Pedro Quintais

156

The expansive tendency of the Court was enabled

by the language of a “deliberate/intentional

intervention to give access”, already adopted in

previous decisions. The notion of an “intervention”,

allowed the Court to move discretely beyond

“transmissions”, broadening the scope of the

restricted act. So, for example, Svensson incorporates

within the notion of an act of communication “an

intervention without which users would not be able

to access the works transmitted” by another, thus

apparently differentiating between “transmissions”

and other “acts of communication”. In Ziggo, the

Court conrms this approach by stating that an act

of communication “covers” (but apparently is not

limited to) any transmission or retransmission of a

work.64 Similarly, it is “sufcient” that the work is

made available to the public.65 The notion of an “act

of communication” is ultimately dened as “any act

by which a user, with full knowledge of the relevant

facts, provides its clients with access to protected

works”. 66 These decisions reveal the appropriate

scope of the conduct element in a harmonised EU

accessory liability regime: it seems reasonable to

conclude that the notion of an “intervention” that

does not amount to a “transmission”67 is where a

harmonised accessory liability regime would come

into operation.

Of course, not any “intervention” will sufce. As

noted above, the Court had initially required that

the intervention must be “indispensable”68 or at

least “essential”69 for the dissemination of the work

to third parties. This approach eventually ran into

problems, as the theory developed in the Court ’s

rulings did not properly match the facts to which

it was applied. So, as the AG observed in GS Media, a

hyperlink to a work is not in fact indispensable to the

making of that work available on the Internet, but

merely “facilitates” locating it online.70 Eventually,

in Ziggo, the Court adjusted the language to

accommodate this reality. The current standard is

64 Case C-610/15, Stichting Brein v Ziggo (14 June 2017)

ECLI:EU:C:2017:456, [30].

65 Id. [32].

66 Id. [34].

67 Note that to date, the relationship between a “transmission”

and “making available” has not been clearly addressed by

the Court. While Recital 23 suggests that “making available”

should be understood as a form of transmission, the two

could also be seen as separate, applying respectively to linear

and non-linear (i.e. on-demand) types of communication.

See JP Quintais, ‘Untangling the Hyperlinking Web: In

Search of the Online Right of Communication to the Public’

(2018) 21(5-6) J. World Intell. Prop. 385.

68 Case C-160/15, GS Media (8 September, 2016)

ECLI:EU:C:2016:644, [35].

69 Case C-527/15, Stichting Brein v Jack Frederik Wullems (26 April

2017) ECLI:EU:C:2017:300, [31].

70 Opinion of Advocate General Wathelet at [54]-[60], Case

C-160/15, GS Media (7 April 2016) ECLI:EU:C:2016:221.

therefore that of “interventions in the absence of

which the public would be able to enjoy the work

only with difculty.”71

The result has been an expansion of the notion of

an act of communication to the public to cover not

only actual transmissions of works, but also acts that

facilitate such transmissions. Following this model,

the “conduct element” of accessory copyright

liability becomes a strikingly commodious one. The

bar is set very low, incorporating any non-minimal

participation in the copyright infringement of

another party. As the hyperlinking case law reveals,

such participation may even take the form of an ex

post promotion of the infringing behaviour. The Court

appears to place causality at centre stage, so that the

existence of some sort of causal connection to the

primary infringement, or at least its consequences

for the right-holder, seems to be necessary.

However, the connection need not be sine qua non.

All that is required is that, without the defendant’s

involvement, “in principle”72 infringement would

be “more complex”.73 The implication is that of a de

minimis rule.74

It is worth noting that, in their national law,

EU Member States have often taken different

approaches. For example, in English law the

doctrine of joint tortfeasance recognises three

possible “participation links” connecting the

behaviour of parties jointly liable for the same tort:

“authorisation”, “inducement” or “procurement”,

and entering into a “common design”.

As copyright

infringement is a tort, the same principles apply to

identify accessories in copyright cases.76 English

doctrine emphasises the distinction of these conduct

elements from the concept of a “mere facilitation”,

which is seen as incapable of giving rise to joint

tortfeasance. Similarly, in Germany, under the rule of

71 Case C-610/15, Stichting Brein v Ziggo (14 June 2017)

ECLI:EU:C:2017:456, [26].

72 Case C-527/15, Stichting Brein v Jack Frederik Wullems (26 April

2017) ECLI:EU:C:2017:300, [31].

73 Case C-610/15, Stichting Brein v Ziggo (14 June 2017)

ECLI:EU:C:2017:456, [36].

74 For further discussions on the de minimis rule in accessory

liability see: C Angelopoulos, European Intermediary Liability

in Copyright: A Tort-Based Analysis (Kluwer Law International

2016), section 5.2.3.; PS Davies, Accessory Liability (Hart

Publishing 2015) 37-40; D Cooper, Secondary Liability for Civil

Wrongs (unpublished PhD thesis, University of Cambridge

1995) 9; and P Sales, ‘The Tort of Conspiracy and Civil

Secondary Liability’ (1990) 49(3) Cambridge L. J. 491, at

note 62.

75 H Carty, ‘Joint Tortfeasance and Assistance Liability’ (1999)

19(4) Legal Studies 489; L Bently and B Sherman, Intellectual

Property Law (5th ed, Oxford University Press 2018)

1286-1289.

76 See e.g. Credit Lyonnais Bank Nederland NV (now Generale Bank

Nederland NV) v Export Credits Guarantee Department [1999]

C.L.C. 823, 853.

Fixing Copyright Reform

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157

Article 830(2) of the Bürgerliches Gesetzbuch (German

Civil Code – BGB), instigators and accessories to a tort

(including copyright infringement) are considered

Mittäter, i.e. joint tortfeasors responsible for the

damage.

42 Yet, commentators have questioned the conceptual

soundness of these approaches. For example, Sales

has worried that: “In many cases, […] the dividing

line between inducing a third party to commit a

wrong and assisting him in its commission is so ne

as to be non-existent”.

Indeed, careful examination

of these notions reveals embedded within them

the implication of a mental identication of the

collaborator with the primary wrongdoer. Arguably,

the terms “authorisation”, “procurement” or

“common design” imply an inherent mental

dimension. Detangling them from that dimension

distorts their natural meaning. Similarly, German

legal theory justies the liability of Mittäter on the

existence of a “psychisch vermittelte Kausalität”, i.e. a

psychological causation that connects the accessory

to the act of the primary infringer.78

In our view, if it is to be the defendant’s state of mind

that determines which conduct leads to accessory

liability, then this should be explicitly acknowledged

by the law. The mental element should be examined

as such, not subsumed within the analysis of the

conduct element. Obviously, this approach does

not offer great scope for meaningful distinctions

between different kinds of intermediary conduct.

But this is not necessarily inappropriate. Instead,

we suggest that the purpose of the conduct element

is to separate the chaff of random bystanders from

the grain of the involved accessories, i.e. persons

whose liability seems plausible at rst glance. The

“facilitation” of infringement should accordingly

sufce. As all Internet intermediaries will meet

this requirement as soon as their services are used

by another to commit a copyright infringement,

accessory liability will depend on how an

intermediary fares in the subsequent analysis.79

77 P Sales, ‘The Tort of Conspiracy and Civil Secondary

Liability’ (1990) 49(3) Cambridge L. J. 491.

78 W van Gerven and others, Tort Law (Hart Publishing 2000)

430-432; and H Koziol, Basic Questions of Tort Law from a

Germanic Perspective (Jan Sramek Verlag 2012) 140.

79 It is worth noting that recent academic approaches to

accessory liability espouse a similar approach, including

in jurisdictions that have traditionally attempted a more

discerning denition of conduct capable of resulting in

accessory liability. See, e.g., PS Davies, Accessory Liability

(Hart Publishing 2015) 39. For a similar analysis by a national

judge see Lord Sumption in Sea Shepherd UK v Fish & Fish Ltd

[2015] UKSC 10 (4 March 2015), [41].

2. The Mental Element of

Accessory Liability

While accessory liability for a copyright infringement

cannot be established without a nding of a conduct

element, that alone should not be sufcient. Instead,

the case law of the CJEU has emphasised that a

second condition must be met: that of a mental

element. So far, the mental element has only been

mentioned by the CJEU in accessory liability cases. As

we have already observed, it is reasonable to assume

that future decisions will also limit its applicability

to such cases, preserving the strict nature of primary

between classic “transmission” cases, for which

no mental element is necessary, and “intervention

short of transmission” cases, where a mental element

would be required.

The next question concerns the appropriate

threshold for the mental element. General legal

theory teaches that two main possibilities exist;

namely, the mental element may take the form of

intent or knowledge.80 Again, the CJEU’s case law

leads the way. GS Media, Filmspeler and Ziggo all

indicate that knowledge of the primary infringement

should be sufcient. At the same time, the Court is

not oblivious to intent either. Close examination

of the wording in Filmspeler and Ziggo makes clear

that both concern accessories whose involvement

in the infringement was intentional. In the rst of

these, the Court makes much of the fact that the

advertisements of the multimedia player specically

stated that it made it possible to watch audiovisual

content made available on the Internet without

right-holder authorisation.

Likewise, in the second,

the Court emphasised the operators’ “purpose to

make protected works available to the users” and

to “encourage the latter to make copies of those

works”.

The nal conclusion makes sense: while

the stronger mental element of intention will

certainly sufce, it does not appear to be necessary

for accessory liability.

46 A bigger question concerns the type of knowledge

required. From the outset, it is important to note

that the knowledge relevant to the mental element

in accessory liability is knowledge of the lack of

authorisation for the primary restricted act. This should

not be confused with a condition of volitional

engagement in the conduct. Even before GS Media,

the CJEU has repeatedly made reference to the fact

80 See C Angelopoulos, European Intermediary Liability in

2016), sections 4.2. and 5.3, and PS Davies, Accessory Liability

(Hart Publishing 2015) 203-209.

81 Case C-527/15, Stichting Brein v Jack Frederik Wullems (26 April

2017) ECLI:EU:C:2017:300, [50].

82 Case C-610/15, Stichting Brein v Ziggo (14 June 2017)

ECLI:EU:C:2017:456, [45]-[46].

2019

Christina Angelopoulos and João Pedro Quintais

158

that the “intervention” representing the act of

communication must be made “in full knowledge of

the circumstances”, i.e. should be “deliberate”.

This

wording implies an understanding on the part of the

defendant that their conduct is occurring rather than

of the infringing nature of the behaviour of another.

Its purpose seems to be to exclude inadvertent

behaviour from giving rise to liability.84 It thus

appears that, according to the CJEU, deliberately

engaging in an “intervention” should be necessary

for ndings of both accessory and primary copyright

infringement.85 By contrast, the mental element of

accessory liability used in GS Media, Filmspeler and

Ziggo is clearly focused on the infringing nature of

the material that is the object of the “intervention”.

47 In addition to this, two distinctions are important:

that between “actual” and “constructive”

knowledge and that between “general” and

“specic” knowledge. Here, the case law paints

a more complicated picture. On the one hand, GS

Media is unambiguous. It required that the provider

of the hyperlink “knew or ought to have known

that the hyperlink he posted provides access to a

work illegally placed on the internet”.86 This points

towards a standard of constructive, but specic

knowledge, i.e. one that requires that the accessory

at least had reason to believe that the specic

work to which it was linking was infringing. The

rebuttable presumption of knowledge introduced

for prot-seeking hyperlinkers reinforces this

threshold. By contrast, in Ziggo, general knowledge

that the defendant’s services were used to provide

access to works published without authorisation

from the right-holders was accepted as sufcient.87

83 Note that under the general principles of European criminal

law, intent covers cases where the actor deliberately acts

in a manner she knows will almost certainly bring about

a result (“dolus indirectus”). See J Blomsma, Mens Rea and

Defences in European Criminal Law (Intersentia 2013) 509-526.

The Draft Common Frame of Reference on European civil

law also includes within its denition of intention instances

where the defendant knew that his behaviour could result

in the commission of the wrong by the third party and

meant to engage in it. See C von Bar et al. (eds), Principles,

Denitions and Model Rules of European Private Law: Draft

Common Frame of Reference (DCFR), prepared by the Study

Group on a European Civil Code and the Research Group on

EC private law (Acquis Group), Outline Edition (Sellier 2009)

3266.

84 On these two different aspects of the mental element, see PS

Davies, Accessory Liability (Hart Publishing 2015) 41.

85 For a different interpretation see J Ginsburg, ‘The Court of

Justice of the European Union Creates an EU Law of Liability

for Facilitation of Copyright Infringement: Observations

on Brein v. Filmspeler [C-527/15] (2017) and Brein v. Ziggo

[C-610/15] (2017)’ (22 August 2017)

abstract=3024302> accessed 26 April 2019.

86 Case C-160/15, GS Media (7 April 2016), ECLI:EU:C:2016:221

[49].

87 Case C-610/15, Stichting Brein v Ziggo (14 June 2017)

ECLI:EU:C:2017:456, [45].

The Court also listed a series of indications of

both actual (e.g. notication of infringement) and

constructive knowledge (e.g. the large number of

torrent les),88 but was not clear which of these

marked the threshold.

On the basis of these decisions, we can conclude

that both specic and general knowledge should be

accepted as relevant. Historically, national European

courts have tended to opt for the stricter “specic”

approach; however, with the rise of modern

technologies, a relaxing of the standard towards

“general” knowledge is discernible.89 Indeed, as

the case law shows, the specic or general nature

of the knowledge will largely be determined by the

underlying conduct element. Whereas in GS Media

the provider of the hyperlink is simply “intervening

to provide access” to an unauthorised copy of a single

protected work, the impact of the management of an

online sharing platform is much more severe. Where

a broad denition of the conduct element is accepted,

a matching mental element is appropriate. Following

the GS Media lead, a rebuttable presumption of

knowledge may also be introduced in cases where

the platform acted in pursuit of a prot. This should

only be the case however where the prot-pursuing

actions of the platform were targeted at a specic

infringement. Simply operating a platform for prot

should not be enough.90

49 Similarly, given the oft-referenced objective of EU

level of protection”,91 our proposal suggests that

both actual and constructive knowledge should be

sufcient. This would also be consistent with the

general rule applicable in negligence liability in most

jurisdictions.

At the same time, the wording “ought

to have known” carries signicant meaning that

should not be overlooked: the accessory cannot be

expected to go to unreasonable lengths to uncover

infringements it has no reason to suspect. Again, the

88 Id.

89 C Angelopoulos, European Intermediary Liability in Copyright: A

Tort-Based Analysis (Kluwer Law International 2016), section

5.3.2.2.

90 It is relevant that in Filmspeler and Ziggo, both of which

concerned general knowledge, no rebuttable presumption

of knowledge based on prot was introduced, the Court

instead limiting itself to indicating that prot is an

important factor.

91 See Recital 9 InfoSoc Directive, as well as the case law of the

CJEU (e.g. Case C-610/15, Stichting Brein v Ziggo (14 June 2017)

ECLI:EU:C:2017:456, [22]). See also M Favale and others,

‘Is There an EU Copyright Jurisprudence? An Empirical

Analysis of the Workings of the European Court of Justice’

(2016) 79 The Modern L. Rev. 31, exploring inter alia the role

of this recital in the Court’s “activist, harmonising agenda”

of EU copyright law.

92 C Angelopoulos, European Intermediary Liability in Copyright: A

Tort-Based Analysis (Kluwer Law International 2016), section

5.3.2.1.

Fixing Copyright Reform

2019

159

case law of the CJEU is helpful. In L’Oréal v eBay, the

Court relied on the concept of a “diligent economic

operator” to determine when a host service provider

should be considered to have “awareness of facts

or circumstances from which the illegal activity or

information is apparent” under Article 14 ECD.

The

same notion can be re-purposed for the construction

of a harmonised regime for accessory copyright

liability. Thus, the intermediary should only be

considered to have constructive knowledge when

it is aware of facts or circumstances from which

the infringement would have been apparent to a

“diligent economic operator”. Reliable notication

should sufce as an indication of actual knowledge.

Most importantly, the general monitoring

prohibition of Article 15 ECD must be respected, as

must the limits set by the Charter which underpin

this prohibition. An accessory cannot be said to

have constructive knowledge where that knowledge

could only be acquired through monitoring all of

the information it handles. Up until now, these

limits have only been considered by the Court in

the context of injunctions, but there is no reason

why they should not apply more generally: if the

imposition of an obligation on an intermediary would

disrupt the “fair balance” between fundamental

rights even where this is ordered by a court, that

should all the more be the case when imposed ex

ante with no judicial oversight.

3. The Violation of a Reasonable

Duty of Care

The above expansive conclusions on the scope of the

mental element do not mean that it has no practical

relevance. We propose that the qualication of the

mental element have an impact on the nal piece of

the puzzle: the consequences of the accumulation

of a conduct and mental element for the defendant.

In this area too, the case law of the CJEU leads the

way. To date, outcomes have differed from decision

to decision.

In GS Media, the Court noted that right-holders

have the possibility of informing the providers of

hyperlinks that the work to which they have linked

has been communicated to the public without

permission and of taking action against them if they

refuse to remove the links.

Whether notication

represents a hard condition binding right-holders

before a hyperlink provider can be found liable, is

not made clear by the decision’s wording. If so, the

93 Case C-324/09, L’Oréal v eBay International (12 July 2011)

ECLI:EU:C:2011:474, [120]-[124].

94 Case C-160/15, GS Media (7 April 2016) ECLI:EU:C:2016:221,

[53].

result would be the establishment of a NTD regime.

In Filmspeler and Ziggo, by contrast, no mention of an

opportunity to avoid liability through take-down is

made. The Court simply concludes that where the

conduct element is accompanied by the appropriate

mental element, a communication to the public has

taken place.96

We suggest that the explanation to this apparent

inconsistency can be found in the nature of the

mental element. As noted above, in Filmspeler and

Ziggo, in addition to mere knowledge, there were also

indications of intention to promote infringement

on the part of end-users. It is arguable that these

drive the harsh outcome for the intermediaries in

those decisions. By contrast, in GS Media, the only

possibility considered was that of knowledge.97 This

is a reasonable interpretation that would point

towards a sophisticated liability scheme. Indeed,

attaching different consequences to different degrees

of mental involvement in the commission of a tort

has strong roots in European tort law.98 We suggest

that this approach should be further pursued in EU

accessory copyright liability. A sensible framework

could require that, if an accessory intended an

infringement, its behaviour must be understood

to be, by denition, unacceptable. Liability should

therefore automatically ensue. On the other hand,

if the intermediary has no intent, but does have

knowledge of the infringement, the violation of a

duty of care must rst be established before liability

95 Presumably, GS Media’s rebuttable presumption of

knowledge would mark the limits of such a system.

96 Case C-527/15, Stichting Brein v Jack Frederik Wullems (26 April

2017) ECLI:EU:C:2017:300, [52] and Case C-610/15, Stichting

Brein v Ziggo (14 June 2017) ECLI:EU:C:2017:456, [47].

97 Although the posting of the hyperlink at issue in GS Media

was, based on the facts, undoubtedly itself intentional (i.e.

not inadvertent), it is hard to see how the provider of the

hyperlink could be said to have intended the prior uploading

of the protected content. The chronology is signicant here:

it is arguably not possible to intend an infringement that

occurred before your own action, but it would be possible

to intend the infringements performed subsequently by

users of your technology. While GS Media is concerned only

with knowledge of the unauthorised nature of the linked-

to material, Filmspeler focuses on the advertisement to end-

users of the multimedia player’s infringing capabilities.

Stichting Brein v Ziggo concerns technology that enables

unauthorised le exchanges by others.

98 FH Lawson and B Markesinis, Tortious Liability for

Unintentional Harm in the Common Law and the Civil Law

(Cambridge University Press 1982) 181. See also Art. 2:102(5)

of the Principles of European Tort Law (PETL), developed

by the European Group on Tort Law, which assigns greater

weight to intentionally committed torts over merely

negligence-based ones: “The scope of protection may also

be affected by the nature of liability, so that an interest

may receive more extensive protection against intentional

harm than in other cases.” The PETL are available at:

egtl.org>. See also European Group on Tort Law, Principles of

European Tort Law – Text and Commentary (Springer 2005).

2019

Christina Angelopoulos and João Pedro Quintais

160

can be found.99

What is missing in the CJEU decisions to date is

any consideration of what is to happen where the

defendant had only general knowledge (e.g. through

notication or due to large amounts of infringing

content) that it was facilitating infringement. What

we suggest is that the duties of care to be imposed

on an accessory should be tailored to the kind of

knowledge they display: the type of duty should

depend on the type of knowledge.

Indeed, it is appropriate that, as GS Media suggests, if

the intermediary has specic knowledge – whether

actual (e.g. through notication) or constructive

(e.g. due to circumstances that would have made

it apparent to a “diligent economic operator”)

– of a particular infringement it has through its

conduct supported, it will often be reasonable to

expect that it remove the infringing content. We

suggest that, depending on the circumstances,

other measures (including preventive ones)

might also be appropriate, e.g. the suspension of

repeat infringers, notifying the authorities or the

provision of identifying data on the perpetrator

to the authorities.100 On the other hand, if the

intermediary has only general knowledge of mass

infringements taking place using its systems, the

removal of content will become much harder.

Without specic knowledge, the intermediary will

have difculties locating the infringement without

both violating its users’ fundamental rights and

expending disproportionate time and energy (thus

threatening its own freedom to conduct a business).

Other measures may however be considered. The

posting of warning duties is an obvious candidate.

In all cases, in view of the general monitoring

prohibition of Article 15 ECD and the limits set by

the Charter, accessories should not be expected to

proactively search for infringing content. As a result,

notice-and-stay-down regimes should be excluded.

All duties of care imposed on accessories should be

“reasonable”.101

56 Where the accessory fails to take the measures due,

assuming it had the ability to take those measures or

at least ought to have ensured that it had that ability,

it should be held liable. Liability may be for monetary

99 C Angelopoulos, European Intermediary Liability in Copyright: A

Tort-Based Analysis (Kluwer Law International 2016), sections

5.3 and 5.4.

100 The inspiration for these suggestions can be found in the

CJEU’s decisions on the safe harbours, see Case C-324/09,

L’Oréal v eBay International (12 July 2011) ECLI:EU:C:2011:474,

[141].

101 C Angelopoulos, European Intermediary Liability in Copyright:

A Tort-Based Analysis (Kluwer Law International 2016),

sections 5.4 and 5.5. Cf., on trademark law, F Mostert, ‘Study

on Approaches to Online Trademark Infringements’ (World

Intellectual Property Organization 2017).

compensation, injunctive relief or both, depending

on policy considerations. In our view, no liability

should be imposed if the accessory: (a) had no

knowledge; (b) having knowledge, took all measures

appropriate to the knowledge it possessed; or (c)

had knowledge, but no ability to take appropriate

measures nor an obligation to ensure that it had such

an ability. A nal possibility may also be considered:

if the intermediary did not take the appropriate

measures that would have been expected of it on

a agrantly persistent basis, intent can arguably be

inferred and full liability for damages applied.102

4. Interim conclusion

As the above analysis reveals, the basic elements for

a harmonised European system of accessory liability

for copyright and related rights infringement can

already be detected in the case law. What is missing

is their organisation into a self-standing structure

and the application of that structure on a broad basis.

At the moment, accessory liability is folded into the

rules of primary liability. This is, moreover, only the

case for communication to the public: no accessory

liability regime for participation in the infringement

of other exclusive rights is established. Rather than

cramming accessory liability into a single exclusive

right, a clear framework distinguishing it from

primary liability should be introduced. Ideally, this

framework ought to be set by the legislator in a

systematic way, instead of trickling out of the CJEU

on a case-by-case basis.

Of course, a more targeted approach could also

be envisaged, tailored specically to Internet

intermediaries or certain types thereof (such as

OCSSPs). The preference should however be for a

more generalised harmonisation that can allow for

a future-proof regime, reliant on principles rather

than reactive to circumstances and the pressure

of lobby groups. Moreover, unlike Article 17, any

new provision should complement, rather than

102 Precedent for a presumption of intent on the basis of

the previous persistent violation of duties of care can

be found, for example, in German case law. The German

lower courts have, in the past, found that the agrant and

consistent violation of duties of care can push liability

beyond Störerhaftung, i.e. liability only for injunctive orders,

towards full liability as a Gehilfe, i.e. an assistant. See e.g.

OLG München, 11 January 2006, 21 O 2793/05, (2006) 3

ZUM 255; OLG Hamburg, 13 May 2013, 5 W 41/13, (2013)

8 MMR 533 – Hörspiel; LG Frankfurt a. M., 5 February 2014,

2-06 O 319/13, (2015) 2 ZUM 160 – File-Hosting. See also M

Gruenberger & A Dietz, ‘Germany’ in L Bently, International

[c][i]; S Jaworski & JB Nordemann, ‘Gehilfenhaftung von

Intermediären bei Rechtsverletzungen im Internet’ (2017) 6

GRUR 567; T Hoeren & S Yankova, “The Liability of Internet

Intermediaries – The German Perspective” (2012) 43 IIC 501,

section C.II.

Fixing Copyright Reform

2019

161

undermine the pre-existing framework and its CJEU

interpretation.

Would this system alone give right-holders the

tools to eliminate online copyright infringement?

Undoubtedly, the answer is “no”. A properly

balanced regime for accessory copyright liability –

particularly one that respects fundamental rights

– would not hold intermediaries liable for online

infringements where there is no mental element

or where duties of care have not been violated. It

therefore can only offer part of the answer. Once it is

in place, both intermediaries and right-holders will

have a clear idea of their legal standing. If no liability

can be imposed on the intermediary, attention

should then shift to a different question: how should

the primary liability of the end-users be addressed?

II. An Alternative Compensation

System for Content-

sharing Platforms

The fragementation in the area of intermediary

liability can be dealt with through European

harmonisation. By contrast, online infringements by

the end-users of content-sharing platforms requires

more innovative solutions. One such solution

can be found in the adoption of an “alternative

compensation system”. Generally speaking, this

term refers to legal models that replace direct

authorisation of certain types of online activities

with a scheme for licensing such use and ensuring

remuneration to right-holders or at least individual

creators, i.e. authors and performers.103 The use in

question would be “permitted but paid”.

104

Different

legal models could in theory support such a scheme,

ranging from voluntary, extended and mandatory

collective management to compulsory or statutory

licences. These models impose increasing levels of

restriction on exclusive rights. So-called “voluntary”

models merely affect the exercise of the right,

whereas “mandatory” models impact its very

nature, replacing an exclusive right for certain uses

with a corresponding right of remuneration or fair

compensation.105 These models do not seek further

to strengthen the enforcement measures available to

right-holders. Rather, they take a broader normative

103 JP Quintais, Copyright in the Age of Online Access: Alternative

Compensation Systems in EU Law (Kluwer Law International

2017), describing different types of proposals for such

systems, initially designed for the legalisation of peer-to-

peer le-sharing.

104 The term is taken from J Ginsburg, ‘Fair Use for Free, or

Permitted-but-Paid?’ (2015) 29 Berkeley Tech. L. J. 1383.

105 JP Quintais, Copyright in the Age of Online Access: Alternative

Compensation Systems in EU Law (Kluwer Law International

2017) 85-150.

view of the copyright system as one that should

enhance lawful access to and use of works, while

ensuring fair remuneration for right-holders, in

particular creators.

One collective licensing mechanism that has

received attention as a possible solution for online

uses is that of collective licensing with an extended

effect.

106

The DSM Directive signicantly harmonises

this authorisation mechanism in its Article 12,107

which envisages three different mechanisms that

have the effect of extending collective licenses to

non-represented right-holders and their works in a

certain territory: extended collective licensing, legal

mandates, and presumptions of representation.

108

Article 12 subjects collective licensing with an

extended effect to a number of requirements: the

licensing mechanism must be managed by a CMO,

within well-dened areas of use, where direct

licensing is too costly or impractical, and in a manner

that “safeguards the legitimate interests” of right-

holders.109 The provision further sets out a number

of safeguards that must be put in place for this

mechanism to be valid: the CMO must be sufciently

representative; there must be equal treatment

between represented and non-represented right-

holders; non-represented right-holders must be

able to opt-out of the system easily and effectively

at any time; and CMOs have to comply with several

information obligations towards right-holders.110

62 Although there is some debate as to the legal nature

of this mechanism, we are of the view that collective

licensing with extended effect is not a copyright

exception or limitation,111 at least where the above

106 JP Quintais, ‘The New Copyright in the Digital Single Market

Directive: A Critical Look’ (24 July 2019) EIPR (forthcoming)

107 Prior to the DSM Directive, it was possible to nd specic

references to extended collective licensing in Art. 3(2)–(4)

Satellite and Cable Directive, as well as in Recitals 18 InfoSoc

Directive, 24 Orphan Works Directive, and 12 CRM Directive.

In addition, several Member States contain provisions

of this type in their national laws, especially the Nordic

countries. See also Recital 44 DSMD.

108 Art. 12(1)(b) DSMD.

109 Art. 12(2) and Recitals 45-47, and 49 DSMD. The denition of

CMO is found in Art. 3(a) CRM Directive.

110 Art. 12(3) DSMD.

111 JP Quintais, ‘The New Copyright in the Digital Single Market

Directive: A Critical Look’ (24 July 2019) EIPR (forthcoming)

. For a more

developed argument regarding extended collective

licensing with an opt-out, see JP Quintais, Copyright in

the Age of Online Access: Alternative Compensation Systems

in EU Law (Kluwer Law International 2017) 110–111 (and

references cited therein); J Axhamn and L Guibault, “Cross-

Border Extended Collective Licensing: A Solution to Online

Dissemination of Europe’s Cultural Heritage” Amsterdam

Law School Research Paper No. 2012-22 (8 February

2012) accessed 21

August 2018; and J Axhamn, “Exceptions, limitations and

2019

Christina Angelopoulos and João Pedro Quintais

162

safeguards, and in particular an opt-out, are put in

place. Instead, using the terminology above, this

would be a “voluntary” model.112

The mechanism of Article 12 has been viewed as

a possible option for obtaining the authorisations

for OCSSPs required by Article 17 of the DSM

Directive. Arguably, it could also provide a promising

solution in the context of our proposed model.

Still, as discussed elsewhere, it faces signicant

challenges.113 To begin with, Article 17 does not

create a framework for pan-European licensing, but

solely for voluntary territorial collective licenses.

In addition, it sets out a number of requirements

that will be challenging to meet in the short and

medium-term for CMOs in many Member States,

such as that of representativeness. Even for Member

States where some CMOs in some elds meet the

requirements (e.g. online music), other CMOs in

other elds may not (e.g. visual arts). The result

would be the co-existence of extended collective

licenses in some Member States (of parts thereof)

with a system of individual or limited voluntary

collective licensing for platforms in other Member

States, leading to a fragmented EU landscape.

Finally, because extended collective licensing is an

alien mechanism for many Member States, its roll

out will necessarily be slow and complex, making it

more of a long-term proposition, even if it is adopted

consistently across the EU for all types of uses by

content-sharing platforms.

In light of the above, we are of the view that for

types of mass use where enforcement is ineffective,

too costly, or even undesirable – due to conicts

with fundamental rights and other public interest

concerns – mandatory variants of alternative

compensation systems are compelling propositions.

Indeed, such systems are best suited to deal with

the substantive and territorial fragmentation

of copyright that characterises the copyright

acquis, to provide legal certainty, and to ensure

the participation of users and right-holders in the

system.114

Building on precedents with a long tradition in

copying schemes – a number of authors and policy

makers have been calling for similar solutions in

collective management of rights as vehicles for access to

information. In Access To Information And Knowledge: 21st

Century Challenges in Intellectual Property and Knowledge

Governance” (Edward Elgar 2013) 164–186.

112 See, in this respect, JP Quintais, Copyright in the Age of Online

Access: Alternative Compensation Systems in EU Law (Kluwer

Law International 2017).

113 JP Quintais, ‘The New Copyright in the Digital Single Market

Directive: A Critical Look’ (24 July 2019) EIPR (forthcoming)

114 Id. 85-150, 242-243.

the current “value gap” debate, as supplements to

the harmonisation of intermediary liability at the

EU level.115 Our proposal goes in a similar direction.

In essence, it aims to legalise and remunerate a

broad swath of infringing online acts by individuals

(discussed in B.II.) that are carried out through

the services of certain Internet intermediaries.

Combined with the accessory copyright liability

regime proposed in C.I., our alternative system

could close the regulatory “value gap”, which arises

from the lack of adequate rules to deal with mass

uncompensated online infringements by users in a

way that is consistent with the goals of copyright

law and achieves a “fair balance” between competing

rights and interests. The scope and main elements

of the proposal are outlined below.

1. Scope of the system

The scope of our proposed system includes different

design elements. Namely, it is a statutory license

coupled with a mandatory exception, applying to

specic types of subject matter and specic activities

of users (and, by extension, of platforms), coupled

with a right of fair compensation, and accompaned

by certain obligations on payment and safeguards

for the affected platforms. These elements are

elaborated on below.

115 R Hilty and A Bauer, ‘Use of Protected Content on Online

Platforms’ in R Hilty and V Moscon (eds), Modernisation of

the EU Copyright Rules Position Statement of the Max Planck

Institute for Innovation and Competition (Max Planck Institute

for Innovation & Competition Research Paper No. 17-12,

18 September 2017)

accessed 26 April 2019, 99-112. This proposal is endorsed

with slight changes by M Senftleben and others, ‘The

Recommendation on Measures to Safeguard Fundamental

Rights and the Open Internet in the Framework of the EU

‘The Council Negotiating Position on Article 13: Warning,

Creators are also Part of the Game!!!’ (Kluwer Copyright

Blog, 4 July 2018)

com/2018/07/04/council-negotiating-position-article-

13-warning-creators-also-part-game/>, accessed 17

April 2019; J Reda, ‘Julia Reda discusses the current

Proposal for a Directive on copyright in the Digital Single

Market’ (Kluwer Copyright Blog, 18 June 2018)

copyrightblog.kluweriplaw.com/2018/06/18/julia-reda-

discusses-current-proposal-directive-copyright-digital-

single-market/> accessed 26 April 2019. Prior proposals

with relevance to this topic include: JP Quintais, Copyright in

the Age of Online Access: Alternative Compensation Systems in EU

Law (Kluwer Law International 2017); T Kreutzer and others,

‘The Berlin Gedankenexperiment on the restructuring of

para 1; M Leistner, Copyright Law on the Internet in Need of

Revision: Hyperlinks, Online Platforms and Aggregators 12 (2)

(2017) J Intell. Prop. L. & Practice 136-149; M Leistner and

A Metzger, ‘The EU Copyright Package: A Way Out of the

Dilemma in Two Stages’ (2017) 48 IIC 381.

Fixing Copyright Reform

2019

163

a.) Statutory licence and

mandatory exception

67 The system we envisage would involve a statutory

licence, based on an exception for individual online

users.116 The exception would privilege the non-

commercial use of works on user-upload or user-

generated content platforms, jointly referred here as

“content-sharing platforms”. Such platforms would

include Internet intermediaries that provide hosting

services enabling users to upload and exchange inter

alia copyright-protected works and related subject

matter.

The exception should be mandatory, not only because

of the cross-border and single market relevance of

the uses covered, but also due to its strong normative

underpinnings. As argued elsewhere, an exception

of this type – i.e. one applying to user-generated

content – will improve legal certainty for users and

content-sharing platforms.117 It will furthermore

align copyright with online social norms, resulting

in benets for the respect and legitimacy of

the law. Finally, an exception that covers user-

generated content would function as an online

extension of the concepts of quotation, parody and

transformative use, which are clearly grounded in

freedom of expression and information.

118

In its case

law, the Court has used this fundamental freedom

to limit remedies for copyright infringement and

to justify the existence and broad interpretation of

the parody and quotation exceptions.

119

In view of

this, an optional exception would risk insufcient

harmonisation and fail to protect adequately the

fundamental rights dimension of privileged uses.120

116 JP Quintais, Copyright in the Age of Online Access: Alternative

Compensation Systems in EU Law (Kluwer Law International

2017) 26: “Statutory licenses restrict the nature of a pre-

existing exclusive right through the application of a

compensated limitation.” In this article, we use the term

‘exception’ as having the same meaning as ‘limitation’, and

with reference to the title of Art. 5 InfoSoc Directive.

117 JP Quintais, ‘Rethinking Normal Exploitation: Enabling

Online Limitations in EU Copyright Law’ 41 (2017) 6 AMI:

Tijdschrift voor Auteurs-, Media- & Informatierecht

197-205.

118 See Art. 11 Charter and Recital 3 InfoSoc Directive. This

point is also recognised in the context of the new mandatory

exceptions in Article 17(7) DSMD and accompanying

recital 70.

119 Case C-70/10, Scarlet Extended (24 November 2011)

ECLI:EU:C:2011:771, [43], [50]–[53]; Case C-360/10, Netlog

(16 February 2012) ECLI:EU:C:2012:85, [41]–[43], [48],

[50]–[51]; Case C-314/12, UPC Telekabel (27 March 2014)

ECLI:EU:C:2014:192, [46]–[47], [55]–[57]; Case C-201/13,

Deckmyn (3 September 2012) ECLI:EU:C:2014:2132;

Case C-145/10, Eva-Maria Painer (1 December 2011)

ECLI:EU:C:2013:138; Case C-469/17, Funke Medien (29 July

2019) ECLI:EU:C:2019:623, [39]-[54]; Case C-476/17, Pelham

(29 July 2019) ECLI:EU:C:2019:624, [72]; Case C-516/17, Spiegel

Online (29 July 2019) ECLI:EU:C:2019:625, [50]-[59], [75]-[95].

120 M van Eechoud and others, Harmonising European Copyright

The exception would directly cover and authorise

acts by individual end-users of content-sharing

platforms that are natural persons. This means that

neither legal persons nor other collective entities

would be direct beneciaries of the system. This marks

a difference from the DSM Directive’s approach.

According to Article 17(2) DSMD, if OCSSPs obtain a

licence from right-holders, this must also extend to

acts of users of their services covered by the right of

communication to the public, provided they “are not

acting on a commercial basis or where their activity

does not generate signicant revenues”. Hence,

where such agreements are concluded, the provider

will assume liability for infringement by end-users

by virtue of its contractual arrangement with right-

holders. In a way, the platform will be passing on

its licence to its users for their non-commercial

activities.121 Where no licensing agreements are

concluded by the platform, end-users will not be

shielded from liability – unless their activities are

privileged by an existing exception.122 In this no-

agreement scenario, platforms will only be able to

escape liability if they can show they have made

the “best efforts” to license required by Art. 17(4)

DSMD.123

By contrast, our proposal does not rely on the

licensing of exclusive rights through platforms.

Rather, it focuses on an exception to the benet of

users. At the same time, it would indirectly benet

certain content-sharing platforms, on the condition

that they are compliant with the accessory copyright

liability regime sketched out above. In practice, this

would mean the following.

To qualify, a platform must not be making an own

use of the work that triggers the exclusive rights

of reproduction and communication or making

available to the public under Articles 2 and 3 of the

InfoSoc Directive.124 If there is no own use, whether

the content-sharing platform is accessorily liable

should be considered, meaning that it is necessary

Law: The Challenges of Better Law Making (Kluwer Law

International 2009) 128–129, identifying these arguments

for qualifying limitations as mandatory.

121 NB other contractual schemes are possible, for example a

covenant not to sue by right-holders, an indemnication

obligation by the platforms, a contract in favour of third

parties (the users) by the platform, a sub-licence, etc.

122 Such as applicable exceptions in Art. 5(3) InfoSoc Directive

and, after national implementation of the DSM Directive,

those mentioned in Art. 17(7) thereof.

123 Art. 17(4) DSMD. See also Art. 17(5) DSMD, identifying

the factors to be taken into account in determining the

compliance of platforms with their obligations under Art.

17(4) DSMD.

124 Our position, contrary to Art. 17(1) DSMD, is that a for-prot

platform that merely hosts large amounts of copyright-

protected works or other protected subject matter uploaded

by its users is not automatically carrying out a restricted act

under Art. 3 InfoSoc Directive.

2019

Christina Angelopoulos and João Pedro Quintais

164

to examine its conduct and mental elements.125 By

exempting the acts of individual users, this regime

would heighten the threshold required for a nding

of knowledge or intent of infringement by the

platform as regards uses outside the scope of the

exception. This is because accessory liability would

depend on the platform having knowledge that the

use in question is either commercial or otherwise

not covered by the exception.

72 For platforms, this solution would bring signicant

benets as compared to the approach in the DSM

Directive. It would increase legal certainty by

clarifying their liability for acts of their users, while

preventing the extension of the exclusive right to

their normal activities. For acts of end-users covered

by the exception, platforms would be allowed

signicant breathing space to provide their services

and would not be subject to injunctions under Article

8(3) of the InfoSoc Directive. Finally, due to the

privilege granted to users, our proposal (in contrast

with Article 17(4) DSMD) discourages preventive

ltering, an aspect that bolsters its compliance

with fundamental rights and the ban on general

monitoring in Article 15 ECD. At the same time, as

specied above in C.I.3., there remains ample space

for reactive duties of care, such as NTD obligations, to

be imposed on platforms, upon obtaining knowledge

of infringements regarding content or uses outside

the exception’s scope.

b.) Subject Matter Scope

In theory, our system could apply to all types of

protected works and other subject matter, domestic or

foreign to an EU Member State, susceptible to upload

and use in a content-sharing website. In practice,

for reasons of compliance with the three-step

test,126 some subject matter exclusions are sensible.

As explained below, the exception underlying our

proposal operates as a restriction on the exclusive

rights of reproduction and communication to the

public in Articles 2 and 3 InfoSoc Directive. It is

therefore logical to follow the directive’s regime

and exclude computer programs and databases from

the scope of our statutory licence.127 This exclusion

is further justied by the idiosyncratic motivations

and legal regimes for these types of subject matter in

EU law, and the fact that the software and database

sectors operate according to specic logics, so that

125 See supra C.I.1.–C.I.2.

126 More specically, subject matter restrictions are important

to ensure that the exception underlying our system

qualies as a “certain special case” under the rst step of

the test. See JP Quintais, Copyright in the Age of Online Access:

Alternative Compensation Systems in EU Law (Kluwer Law

International 2017) 387-388 and references therein.

127 See Art. 1(2)(a) and (e) InfoSoc Directive.

they do not suffer from the problem of large-scale

infringement to the same extent as other types of

content.

128

In our view, many of the same arguments

are valid for videogames.129 A practical consideration

strengthens such exclusions: these categories have,

to date, “remained largely exempt from statutory or

collective licensing”, on which our system relies.130

In essence, the main policy choice is whether to

extend the system and underlying exception to

all or most types of works/subject matter covered

by the InfoSoc Directive, or advance a category-

based approach, aimed solely at certain types of

content popular across content-sharing platforms

and for which – and to the extent that – there are

mature structures of collective rights management:

music, including the musical work, xations of

performances and phonograms; text; visual; and

lm/video.131 The best option would be to have

the system mirror the subject matter scope of the

InfoSoc Directive, as that would ensure the internal

consistency of the statutory license. The obvious

issue with this approach is that sectors with under-

developed collective rights management structures

would need to develop these before being able to

fully benet from the system.

c.) Substantive Rights Scope:

Authorised Acts

Our proposal is based on an exception for non-

commercial online acts of reproduction and

communication to the public by users of content-

sharing platforms. For the types of use covered by

the exception, the exclusive rights at issue would be

recast as rights to fair compensation.

76 Existing proposals differ somewhat in this respect.

For example, Hilty and Bauer suggest an exception

that would cover the act of uploading and any uses in

preparation of user-generated content.132 In a slightly

128 JP Quintais, Copyright in the Age of Online Access: Alternative

Compensation Systems in EU Law (Kluwer Law International

2017) 388 and references cited therein.

129 See, for a detailed argument, JP Quintais, Copyright in the Age

of Online Access: Alternative Compensation Systems in EU Law

(Kluwer Law International 2017) 387-391.

130 PB Hugenholtz and JP Quintais, ‘Towards a Universal Right

of Remuneration: Legalizing the Non-commercial Online

Use of Works’ in PB Hugenholtz (ed), Copyright Reconstructed:

Rethinking Copyright’s Economic Rights in a Time of Highly

Dynamic Technological Change (Kluwer Law International

2018) 265.

131 Id. 266.

132 R Hilty and A Bauer, ‘Use of Protected Content on Online

Platforms’ in R Hilty and V Moscon (eds), Modernisation of

the EU Copyright Rules Position Statement of the Max Planck

Institute for Innovation and Competition (Max Planck Institute

for Innovation & Competition Research Paper No. 17-12,

Fixing Copyright Reform

2019

165

different approach, the proposal by Senftleben et

al. also covers the further dissemination of user-

generated remixes and mashups of protected

content.133

In our view, the exception must clearly apply to

any use covered by the rights of reproduction and

communication to the public that takes place in the

context of content-sharing platforms.

134

It should

further clarify that it applies to transformative uses

(e.g. certain types of remixes or mashups), including

those that lie in the grey area between reproduction

and adaptation.135 To be sure, this would amount to

an indirect (partial) harmonisation of the right of

adaptation. Still, it would prevent legal uncertainty

in the application of the exception, which could

undermine its effectiveness.

As a matter of legal design, the application of a

statutory licence to at least two exclusive rights can

give rise to one or more copyright exceptions. For

example, Article 5(2) of the InfoSoc Directive lists

cases allowing for a limitation to the reproduction

right, whereas Article 5(3) of the same directive, as

well as the Orphan Works Directive, set out exceptions

to the rights of reproduction and communication to

the public. Therefore, in this respect, our exception

is not a radical departure from existing law.

Still, we should be mindful to avoid overlaps with

existing exceptions susceptible to application to

the types of online use targeted here. These include

18 September 2017)

accessed 26 April 2019.

133 M Senftleben and others, ‘The Recommendation on

Measures to Safeguard Fundamental Rights and the Open

Internet in the Framework of the EU Copyright Reform’

(2018) 40(3) EIPR 149.

134 NB Art. 17(7) DSMD extends the exceptions therein to the

activities of users “when uploading and making available

content …on online content-sharing services”.

135 On the potential scope of an exception for user-generated

content in the acquis, see JP Quintais, ‘Rethinking Normal

Exploitation: Enabling Online Limitations in EU Copyright

Law’ (2017) 41(6) AMI: Tijdschrift voor Auteurs-, Media- &

Informatierecht 197-205, citing the proposals the Internal

Market Committees (IMCO) and the Culture Committee

(CULT) during the legislative process of the proposed

Directive. See European Parliament, ‘Opinion of the

Committee on the Internal Market and Consumer Protection

for the Committee on Legal Affairs’ (COM(2016)0593 – C8-

0383/2016 – 2016/0280(COD)), Rapporteur: Catherine

Stihler, 14 June 2017, Amendment 55, new Art. 5b, 36;

European Parliament, ‘Opinion of the Committee on

Culture and Education for the Committee on Legal Affairs’

(COM(2016)0593 – C8-0383/2016 – 2016/0280(COD)),

Rapporteur: Marc Joulaud, 4 September 2017, Amendment

60, Art. 5a (new) on “Use of short extracts and quotations

from copyright-protected works or other subject matter in

content uploaded by users”. For a user-generated content

exception that was made into law, see Sec. 29.21(1) of

c. C-42)).

temporary and transient copying, quotation,

incidental inclusion and caricature, parody, and

pastiche.

136

In fact, Article 17(7) of the DSM Directive

imposes an obligation on Member States to ensure

that users of OCSSPs benet from certain exceptions

dened as optional in Article 5 InfoSoc Directive.

The exact legal nature and scope of the exceptions

in paragraph (7) are unclear at this stage. At the very

least, the provision will have the effect of making

such exceptions mandatory and fully applicable

in the context of uploads in OCSSPs. In any case,

while potential overlaps cannot be excluded,

their existence is not detrimental to our proposal.

After all, overlaps already exist in the InfoSoc

Directive, for example between private copying and

reprography.

137

What is important is to take such

overlaps into consideration when designing the

system and calculating the amount of compensation

due.138

The thornier issue lies with the central characteristic

of the exception; specically, that it privileges

only non-commercial use. The denition of non-

commercial use is still an unsettled matter in

the EU copyright acquis, despite the fact that the

concept features in various provisions of the legal

framework.139 The concept also lies at the heart of

the above-mentioned Article 17(2) DSM Directive.140

As argued elsewhere, the notion of “non-commercial”

should be understood as a legal standard (as opposed

to a rule) and an autonomous concept of EU law.141

In essence, this means that it should apply to the use

of works by individuals not in direct competition

with use by the copyright-holders. To determine

136 Arts 5(1), 5(2)(b), and 5(3)(d), (i) and (k) InfoSoc Directive.

137 Arts 5(2)(a) and (b) InfoSoc Directive. See in this respect, Case

C-572/13, Reprobel (12 November 2015) ECLI:EU:C:2015:750,

[32]-[43].

138 Cf. JP Quintais, Copyright in the Age of Online Access: Alternative

Compensation Systems in EU Law (Kluwer Law International

2017) 391-392. See infra C.II.2.

139 Art. 5(2)(b) and (e), 5(3)(a) and (b) InfoSoc Directive, as well

as Art. 6(5) Orphan Works Directive (Directive 2012/28/

EU of the European Parliament and of the Council of 25

October 2012 on certain permitted uses of orphan works

[2012] OJ L 299/5) and Art. 5(3) of the Collective Rights

Management Directive (Directive 2014/26/EU of the

European Parliament and of the Council of 26 February 2014

on collective management of copyright and related rights

and multi-territorial licensing of rights in musical works for

online use in the internal market [2014] OJ L 84/72).

140 See supra C.II.1.(a).

141 JP Quintais, Copyright in the Age of Online Access: Alternative

Compensation Systems in EU Law (Kluwer Law International

2017) 10-11, 214-215, 276-284, 392-394. See also PB

Hugenholtz and JP Quintais, ‘Towards a Universal Right of

Remuneration: Legalizing the Non-commercial Online Use

of Works’ in PB Hugenholtz (ed), Copyright Reconstructed:

Rethinking Copyright’s Economic Rights in a Time of Highly

Dynamic Technological Change (Kluwer Law International

2018) 263-264.

2019

Christina Angelopoulos and João Pedro Quintais

166

this standard, recourse can be had to criteria that

are both subjective, like the prot-making purpose

of the user, and objective, such as the commercial

character of the use.

142

In the context of content-

sharing content platforms, where most individual

users do not carry out a business activity or make

prot from the platform, the application of such a

standard will, as a rule, be straightforward.

Other authors follow a similar approach. In a nod

to the second condition of the three-step test,143

Hilty and Bauer propose that whether a use is

non-commercial or not, should be determined

by excluding uses that conict with the normal

exploitation of works because they are on a

commercial scale or serve a commercial objective.

144

To make the distinction clear, the authors propose

adding recitals to support the exception, listing

positive and negative examples, such as an exclusion

of uploads in peer-to-peer platforms.145 Further

recitals could be envisaged to esh out subjective

and objective criteria to access the commercial

nature of a use. For example, it could be stated that

the concept of non-commercial use focuses on online

activities of consumption, enjoyment, reference,

or expression, outside the context of a market or

business activity, and excludes acts with a direct

prot intention or for monetary compensation.146 It

would also be sensible, in line with Article 17(2) DSM

Directive, to include in the concept activities that

do “not generate signicant revenues”, as these are

unlikely to encroach upon the normal exploitation

of works or produce harm to right-holders.

An important point is that the concept does not

exclude acts of end-users that, although not carried

out with a prot-making intention, nonetheless

bear economic signicance. To exclude from the

142 Id. 391-394 and references cited therein. NB Art. 17(2) DSMD

appears to rely on objective criteria.

143 Art. 5(5) InfoSoc Directive.

144 For a detailed argument on how an exception for user-

generated content does not violate the second step of

the three-step test, see JP Quintais, ‘Rethinking Normal

Exploitation: Enabling Online Limitations in EU Copyright

Law’ 41 (2017) 6 AMI: Tijdschrift voor Auteurs-, Media- &

Informatierecht 197-205.

145 R Hilty and A Bauer, ‘Use of Protected Content on Online

Platforms’ in R Hilty and V Moscon (eds), ‘Modernisation

of the EU Copyright Rules Position Statement of the Max

Planck Institute for Innovation and Competition’ (Max

Planck Institute for Innovation & Competition Research

Paper No. 17-12, 18 September 2017)

abstract=3036787> accessed 26 April 2019.

146 JP Quintais, Copyright in the Age of Online Access: Alternative

Compensation Systems in EU Law (Kluwer Law International

2017) 393, advancing a denition of non-commercial that

“would prevent individual operators of P2P and other

platforms that generate advertising or sponsorship or other

nancial consideration in connection with the usage of

works from being exempt from liability as a result of the

adoption of the statutory license.”

exception any type of use or works with economic

value would deprive the exception of any useful scope

and effect, limiting it to de minimis use. The example

that comes to mind is that of cost savings for users

that would be willing to pay for access to the work

outside the content-sharing platform. The payment

of fair compensation would be designed to address

such potential harm to right-holders, returning it

to tolerable levels, provided the permitted use does

not conict with major sources of right revenues

of copyright-holders.147 Grey area cases on the

commercial/non-commercial qualication of a use

will be decided by national courts and ultimately by

the CJEU, in the interpretation of this autonomous

concept.148

A related aspect is the need to ensure the system

enables the commercial exploitation of works

on content-sharing platforms. Activities like the

automatic posting of advertisements on the same

page as the work, but unrelated to its content do not

appear problematic to us at the moment. Conversely,

the direct monetisation of a work by either the end-

user or the platform (e.g. through advertisements on

an uploaded video tailored to its contents) should

generally fall outside the scope of the exception, as it

would amount to a commercial use. This would mean

that such monetisation would require an agreement

with the right-holder, although intermediaries

might avoid liability where there is no agreement,

if they abide by the conditions of the applicable

intermediary liability regime. If such agreement

is reached, the commercialisation of the work

must be taken into account when calculating fair

compensation for its upload, as it would necessarily

mean that, from that moment on, no “harm” would

be caused to the rights-holder. The result would be

that the work would remain accessible, but no fair

compensation would be due under our system, as

there would be no harm to compensate: the right-

holders would already be remunerated through

contract.

85 A key point is that the exception would not require

the content-sharing platform at issue to be itself a

non-commercial enterprise. The non-commercial

restriction only refers to the activities of the user in

uploading and disseminating the content through

the platform, that is neither making its own use

of the content nor qualies as accessorily liable.

This precision is important, as it ensures the

effectiveness of the limitation and its potential to

147 JP Quintais, Copyright in the Age of Online Access: Alternative

Compensation Systems in EU Law (Kluwer Law International

2017) 288-295, 394.

148 Id. at 394, noting that “[r]egardless, whatever indirect

nancial consideration end-users receive in grey-area cases,

it is unlikely to cause substantial harm to right-holders, and

should therefore be susceptible of compensation in the

context of a statutory licence…”.

Fixing Copyright Reform

2019

167

generate signicant revenue for right-holders as fair

compensation, by allowing the system to include for-

prot platforms.

Finally, Hilty and Bauer also propose that only

works that are freely available online (being either

uploaded from an authorised source, covered by an

exception or limitation or by an implied license) can

be privileged by the exception.149 This requirement

mirrors that of “lawfulness of source” developed by

the CJEU in ACI Adam when interpreting the private

copying limitation in light of the three-step test.150

Although we have reservations as to whether this

requirement is truly necessary under the three-step

test, its application in the present context would be

useful, as it would provide a clear legal basis for

right-holders to notify platforms that are otherwise

(prior to this knowledge-making notication) not

accessorily liable, so that they may remove or disable

access to the infringing copy. It also makes clear

that the re-uploading of content available online

through commercial channels subject to technical

restrictions of access (e.g. via a streaming service

like Spotify or Netix) would not be covered by our

proposed exception.

149 Similarly, see R Hilty and A Bauer, ‘Use of Protected

Content on Online Platforms’ in R Hilty and V Moscon (eds),

Modernisation of the EU Copyright Rules Position Statement of

the Max Planck Institute for Innovation and Competition (Max

Planck Institute for Innovation & Competition Research

Paper No. 17-12, 18 September 2017)

abstract=3036787> accessed 26 April 2019, 107, explaining

that “a private user action may build upon previous acts

of exploitation from third-parties that are covered by an

exemption, however not through the exploitation of illegal

le sharing.”

150 For a detailed analysis, see JP Quintais, ‘Private Copying and

Downloading from Unlawful Sources’ (2015) 46(1) IIC 66. For

doubts as to the wisdom of imposing such a requirement for

alternative compensation systems, see JP Quintais, Copyright

in the Age of Online Access: Alternative Compensation Systems

in EU Law (Kluwer Law International 2017) 390-391 and PB

Hugenholtz and JP Quintais, ‘Towards a Universal Right of

Remuneration: Legalizing the Non-commercial Online Use

of Works’ in PB Hugenholtz (ed), Copyright Reconstructed:

Rethinking Copyright’s Economic Rights in a Time of Highly

Dynamic Technological Change (Kluwer Law International

2018) 266.

2. Fair Compensation Right

and its Calculation

The statutory licence proposed here relies on

an exception to exclusive rights tied to a right of

equitable remuneration

151

or fair compensation.

152

These concepts are not synonymous. Equitable

remuneration rights are commonly tied to

compulsory licences for uses or forms of exploitation

of works not previously covered by an exclusive right.

Examples at the international level are the equitable

remuneration rights for the broadcasting of works

and for “secondary uses” of phonograms.

153

In the

EU acquis, there exists a right for an unwaivable and

equitable remuneration for rental, an optional right

of remuneration for public lending, and rights for a

single equitable remuneration for broadcasting and

communication to the public.

154

The CJEU interprets

the concept of equitable remuneration as based on

the “value of the use in trade” and following a logic

of balance between competing interests.155

“Fair compensation” has different contours.

This concept accompanies certain limitation-

based statutory licences. Before the InfoSoc

Directive, most European systems would subject

compensated limitations to the payment of equitable

remuneration, following the blueprint of other non-

exclusive rights in the acquis. After the directive,

that concept was replaced by “fair compensation”.

Rights of fair compensation are now recognised

for reprographic reproductions, private copying,

reproductions of broadcasts by non-commercial

social institutions, and for use of orphan works by

specic organisations.156

In our view, the concept of fair compensation

appears to be the most suitable companion to the

exception. First, Recital 36 of the InfoSoc Directive

suggests a preference of the EU legislator for this

151 R Hilty and A Bauer, ‘Use of Protected Content on Online

Platforms’ in R Hilty and V Moscon (eds), Modernisation of

the EU Copyright Rules Position Statement of the Max Planck

Institute for Innovation and Competition (Max Planck Institute

for Innovation & Competition Research Paper No. 17-12,

18 September 2017)

accessed 26 April 2019.

152 M Senftleben and others, ‘The Recommendation on

Measures to Safeguard Fundamental Rights and the Open

Internet in the Framework of the EU Copyright Reform’

(2018) 40(3) EIPR 149.

153 See Art. 11bis Berne Convention for the Protection of

Literary and Artistic Works, July 14, 1967, 11850 U.N.T.S.

828, and Art. 12 Rome Convention.

154 Arts 5, 6 and 8(2) Rental and Lending Rights Directive.

155 See, on Art. 8(2) Rental Right Directive, Case C-245/00, Sena (6

February 2003) ECLI:EU:C:2003:68, [36]–[37]; Case C-192/04,

Lagardère Active Broadcast (14 July 2005) ECLI:EU:C:2005:475,

[50].

156 See, respectively, Arts 5(2)(a), (b) and (e) InfoSoc Directive

and Art. 6(5) Orphan Works Directive.

2019

Christina Angelopoulos and João Pedro Quintais

168

concept in connection with future compensated

limitations on the directive’s exclusive rights,

including reproduction and communication to

the public, i.e. the rights to which our proposed

exception applies. Second, there is a vast body of

CJEU judgments interpreting “fair compensation”

as an autonomous concept of EU law, thus providing

a solid basis for its seamless implementation in the

acquis.157

90 To be consistent with EU law, our exception should

be aligned with this autonomous concept, as

interpreted by the CJEU. Under this case law, the

right to fair compensation is dened as unwaivable

and vesting solely in the authors and related right-

holders that in EU law are granted the exclusive

rights affected by the exception, i.e. those listed in

Articles 2 and 3 of the InfoSoc Directive.158 As a result,

the grant of a right of fair compensation ensures,

rst, that creators receive a share of the amounts

collected under the statutory licence system and,

second, that they are not forced to transfer that share

to exploiters, i.e. publishers and other derivative

right-holders.159

Since the normative concern with the remuneration

of creators is at the heart of the “value gap” debate,

it makes sense to adopt a fair compensation right

that is both unwaivable and primarily for the benet

of creators. This would ensure a steady ow of

rights revenue to authors and performers, thereby

incentivising and rewarding creative efforts, while

protecting creators from ill-advised transfers of their

rights to other parties in the context of unbalanced

contractual negotiations.160

157 For an overview of this case law, see e.g. A Dias Pereira,

‘Levies in EU Copyright Law: an Overview of the CJEU’s

Judgments on the Fair Compensation of Private Copying

and Reprography’ (2017) 12(7) J. Intell. Prop. L. & Practice

591.

158 But see Art. 16 DSMD, recognising a claim of fair

compensation for press publishers. In our view, this new

claim, introduced in the context of the controversial new

right for press publishers in Art. 15 DSMD, should not affect

our proposal.

159 Case C-572/13, Reprobel (12 November 2015)

Society, ‘European Copyright Society Opinion on The

Reference to the CJEU in Case C-572/13 Hewlett-Packard

Belgium SPRL v. Reprobel SCRL’ (5 September 2015)

reprobel/> accessed 26 April 2019.

160 See JP Quintais, Copyright in the Age of Online Access: Alternative

Compensation Systems in EU Law (Kluwer Law International

2017) and C Geiger ‘Copyright as an Access Right, Securing

Cultural Participation Through the Protection of Creators’

Interests’ in R Giblin and K Weatherall (eds.), What if We

92 The amount of fair compensation should reect the

harm suffered by creators and other right-holders of

the affected exclusive rights.161 The potential harm

caused by the introduction of an exception in the

context of our alternative compensation system

should be considered in terms of the prejudice

suffered by copyright owners due to their inability

to exercise their copyright for the non-commercial

online use of works.

Normally, harm would be measured against the

effects of the limitation on the market. But there is

no actual market to determine accurately the price

of the non-commercial use in question. A statutory

licence of this type applies to public goods or goods

not yet released on the market,

162

and to forms of use

for which there is no clear market due to the lack of

exercise of the right or its monetisation.163 Therefore,

we suggest that the harm should be calculated on

the basis of a different reference point, namely by

assessing the value of the uses at issue to the end-

users that benet from the proposed system.

Following our previous research, the harm in

question could be determined by measuring users’

willingness to pay for such a system through methods

of contingent valuation.164 Furthermore, the amount

of harm should take into consideration mitigating

factors already referred in the InfoSoc Directive’s

recitals and CJEU case law in this eld: the de minimis

nature of a use, prior payments for such use, or the

application of technological protection measures.

For instance, certain types of use permitted by the

exception only cause minimal harm or are already

compensated for through contractual means, i.e.

priced into the purchase or licence of the digital

content uploaded to the content-sharing platform.

The result is that such uses do not cause economic

harm to the copyright holders and may not give rise

to an obligation to pay fair compensation.165

161 Case C-467/08, Padawan (21 October 2010), [40]–[42]; Case

C-572/13, Reprobel (12 November 2015) ECLI:EU:C:2015:750,

[36], [48]–[49].

162 C Handke and others, ‘Going Means Trouble and Staying

Makes It Double: the Value of Licensing Recorded Music

Online’ (2016) 40 J. Cult. Econ. 227.

163 JP Quintais, Copyright in the Age of Online Access: Alternative

Compensation Systems in EU Law (Kluwer Law International

2017) 293, drawing a parallel to the factors mentioned

in Recital 35 of the InfoSoc Directive, which refer to the

calculation of compensation for private copying.

164 Id. 284-285, 293-294. See also J-J Vallbé and others,

‘Knocking on Heaven’s Door - User Preferences on Digital

Cultural Distribution’ (14 July 2015)

abstract=2630519> accessed 26 April 2019 (forthcoming

Internet Policy Review [2019]).

165 JP Quintais, Copyright in the Age of Online Access: Alternative

Compensation Systems in EU Law (Kluwer Law International

2017) 394-397; J-J Vallbé and others, ‘Knocking on Heaven’s

Door - User Preferences on Digital Cultural Distribution’ (14

July 2015) accessed

Fixing Copyright Reform

2019

169

Naturally, these factors can be developed and

additional ones can be devised to assist in the

calculation of the compensation. An example of an

existing factor that can be adjusted to our proposal

would be to consider the above-mentioned case

of post-upload monetisation of content on the

platform with the authorisation of right-holders

as harm-reducing. Additional factors suggested by

other authors include the nature and operation of

a platform, as well as the period of time since the

publication of uploaded works.166

Finally, we should reiterate that the scope of our

proposed exception is linked to that of existing

unremunerated exceptions, such as quotation,

criticism, review, caricature, parody or pastiche.167

If an upload by a user falls within the scope of such

exceptions, as interpreted by the CJEU, then it will

by denition give rise to no harm to be compensated

under our proposed system.

97 If our proposal were to be accepted, it would bring

with it consequences for the legal admissibility of

the underlying exception. Harm calculated in the

way we suggest would correspond to the “prejudice”

suffered by copyright-holders due to their inability

to exercise and license their rights for the uses under

appreciation. By securing the payment of such an

amount as fair compensation, the prejudice would

be returned to reasonable levels. In so designing the

system, we aim to ensure that the exception meets

the requirements imposed by the nal condition

of the three-step test.

168

This approach would also

retain the required link between harm and privileged

use, while approximating fair compensation to

the notion of “appropriate reward” to incentivise

creativity, thereby fullling a declared objective of

EU copyright law.169

26 April 2019 (forthcoming Internet Policy Review [2019]).

166 R Hilty and A Bauer, ‘Use of Protected Content on Online

Platforms’ in R Hilty and V Moscon (eds), Modernisation of

the EU Copyright Rules Position Statement of the Max Planck

Institute for Innovation and Competition (Max Planck Institute

for Innovation & Competition Research Paper No. 17-12,

18 September 2017)

accessed 26 April 2019.

167 See supra at C.II.1.(c).

168 JP Quintais, Copyright in the Age of Online Access: Alternative

Compensation Systems in EU Law (Kluwer Law International

2017) 293.

169 Id. at 381. On “appropriate reward” as an objective of EU

see Recital 10 InfoSoc Directive and M Favale and others,

‘Is There an EU Copyright Jurisprudence? An Empirical

Analysis of the Workings of the European Court of Justice’

(2016) 79 The Modern L. Rev. 31.

3. Payment Obligations and

Safeguards for Platforms

Finally, it is possible to identify some high-level

features of the basic operation of the proposed

statutory licence, including payment obligations

and safeguards for platforms. The obligation to

pay compensation would lie with content-sharing

platform providers whose users benet from the

exception proposed. These providers would be

considered “paying agents” or debtors in the context

of a statutory licensing system managed by a CMO.170

There are valid policy arguments, linked to the

promotion of technological development, that justify

an exclusion for certain smaller, younger and/or less

protable platforms from the payment obligation.

171

In our view, subject to an impact assessment, it

would be justied to consider payment exemptions

for at least two types of service providers. First, for

providers that are start-ups, meaning that their

services have not been available to the public in

the Union for long (e.g. only three or ve years).

This exemption should operate irrespective of the

platform’s size, user-base and/or audience during

the period in question. Second, irrespective of their

age, an exemption should apply to service providers

with an annual turnover below a certain threshold.

172

The statutory licence would be tied to obligatory

collective management of the fair compensation

right.173 Subject to the rules set out in the CRM

170 See also R Hilty and A Bauer, ‘Use of Protected Content

on Online Platforms’ in R Hilty and V Moscon (eds),

Modernisation of the EU Copyright Rules Position Statement of

the Max Planck Institute for Innovation and Competition (Max

Planck Institute for Innovation & Competition Research

Paper No. 17-12, 18 September 2017)

abstract=3036787> accessed 26 April 2019.

171 An exclusion of this type is found for example in Art. 17(6)

DSMD. According to this, certain online content-sharing

service providers that have been operating for fewer than

three years, have an annual turnover below EUR 10 million,

and an average number of monthly unique visitors under

5 million are subject to “lighter” obligations under the

liability regime of Art. 17(4) DSMD.

172 Art. 17(6) DSMD mentions a threshold of EUR 10 million

calculated in accordance with Commission Recommendation

2003/361/EC. However, a much lower threshold could be

envisaged, if the objective were to foster the development

of smaller platforms.

173 In this system, CMOs “play a role in centralizing and

monitoring information as well as in granting fair and

efcient distribution (not neglecting the defence of creators’

interests against the copyright-based industries)”. See R

Hilty and S Nérisson, ‘Collective Copyright Management

and Digitization: The European Experience’ in R Towse and

C Handke (eds.), Handbook on the Digital Creative Economy

(Edward Elgar, 2013) 222-234, discussing the prospective

role of CMOs in the digital environment. The authors suggest

CMOs “could develop tools to enhance non-commercial

uses of protected works thanks to micropayments and

blanket licences”, thus enabling “compensation of creative

people” and allowing “end-users sufcient access to

2019

Christina Angelopoulos and João Pedro Quintais

170

Directive and implementing legislation, cross-border

articulation of CMOs could rely on a network of

representation agreements of national members to

manage and enforce the fair compensation right.

It is also conceivable that an EU-wide umbrella

CMO centralises certain aspects of the system.174

The management of the system and the number of

organisations involved would depend on the scope

and design of the exception(s). As noted, the most

efcient design would be that of one exception

covering two exclusive rights – reproduction

and communication to the public – while leaving

existing exceptions in the acquis intact, and dealing

with potential overlaps when calculating fair

compensation.175

100

Collection of the rights revenue should be carried

out by the competent national CMO directly from the

content-sharing platform. As regards distribution

of compensation, the beneciaries would be the

holders of the exclusive rights affected by the

exception. Because the right of fair compensation

would be unwaivable and non-transferable, authors

and performers would be entitled to a fair share of

the distributable rights revenue, with the remaining

amount going to other right-holders. In our view,

creators should be apportioned at least half of the

rights revenue collected.176

101 As noted, our proposal relies on a functioning and

mature system of collective rights management.

177

Moreover, such a system would require adaptation

to the digital environment so as to apply to

content-sharing platforms. There is therefore an

copyrighted works”. In this respect, they add, “[e]xtending

cases in which copyrights were to be statutorily collectively

managed would help”.

174 These would include data processing, information on

uses, and distribution of rights revenue, to the benet of

second-level national CMOs (or subsidiaries) and other

stakeholders.

175 JP Quintais, Copyright in the Age of Online Access: Alternative

Compensation Systems in EU Law (Kluwer Law International

2017) 391-392 and 400-401. This leaves open the possibility,

inter alia, that a CMO currently tasked with managing an

existing exception, say private copying, would be tasked

with also managing the new exception.

176 This appears consistent with the objective expressed

in Recital 11 InfoSoc Directive of providing adequate

compensation to incentivise creation and safeguard

the “independence and dignity of artistic creators and

performers”. To ensure a fair distribution of revenue to

right-holders, different contingent valuation methods

could be combined, including techniques such as the

measurement of use through electronic rights management

information, sampling, and strictly anonymous monitoring

with the assistance of content-sharing platforms. See JP

Quintais, Copyright in the Age of Online Access: Alternative

Compensation Systems in EU Law (Kluwer Law International

2017) 401, making similar points in the context of a broader

proposal.

177 See supra C.II.1.(b).

important policy choice to be made as to the scope

of application of the system that will directly affect

the functioning and management of the statutory

licence. If the objective would be to enable the

circulation of works and incentivise collectivised

licensing, a possible approach would be to accept

a broad subject-matter scope for the exception, but

to subject payment obligations to the existence of a

functioning and sufciently representative CMO in

that area, in the respective Member State.

102

As noted, content-sharing platforms are the primary

targets of the compensation, however this would

lie ultimately with the users who benet from

the exception. As with most levy systems, payee

platforms would have the option to either shift

the burden of the compensation to users (e.g. as a

subscription fee)178 or absorb (part of) that cost, for

example by nancing it out of advertising revenue.

179

Where the payment of compensation is passed on,

platforms should have an obligation to make this

transparent to users.

103 The imposition of the payment obligation should be

counterbalanced by the introduction of safeguards

for content-sharing platforms. We suggest that,

following the considerations set out above, the new

regime should clarify and strengthen the prohibition

on the imposition of general monitoring obligations

set out in Article 15 ECD. Indeed, if a platform does

not intend or have knowledge of the infringement;

having knowledge, does not violate any applicable

duty of care; and complies with its payment

obligations under the proposed statutory licence,

it should not be subject to preventive obligations

regarding the content it hosts. In such a context,

platforms should only be subject to obligations to

take action against infringing content where it can

be shown that they intend to cause infringement

or after obtaining knowledge of an upload that is in

violation of the exception. In a world where most of

the content uploaded by users would be privileged

by an exception, such obligations would become less

burdensome for platforms.

4. Outcome: A Fair, Effective and

Future-Proof System

104

Section C.II argues for the adoption of a statutory

licence tied to a mandatory exception for individual

online users. The exception would cover non-

178 JP Quintais, Copyright in the Age of Online Access: Alternative

Compensation Systems in EU Law (Kluwer Law International

2017) 401.

179 M Senftleben and others, ‘The Recommendation on

Measures to Safeguard Fundamental Rights and the Open

Internet in the Framework of the EU Copyright Reform’

(2018) 40(3) EIPR 149.

Fixing Copyright Reform

2019

171

commercial use – reproduction and communication

to the public (including transformative use) – of

works and other subject matter (with the possible

exception of software, databases and videogames)

previously uploaded legally on content-sharing

platforms, whether or not these are for-prot. The

system would encompass the vast majority of end-

user activities that normally take place on these

platforms. The exception would be coupled with an

unwaivable right of fair compensation to the benet

of creators and other right-holders, with a fair and

appropriate share of rights revenue to be distributed

to authors and performers. The obligation to pay

compensation would lie with the (non-exempted)

platform providers whose users benet from the

exception. This would happen through a statutory

licensing system managed by a CMO. In return, the

legal system would be claried so as to avoid the

imposition of monitoring and ltering obligations

on such platforms and their users. The design of

the system and the fair compensation right tied to

the exception would ensure its compatibility with

the three-step test, at least if the test is interpreted

exibly.180

105

This solution would serve as a complement to the

harmonised knowledge/intention-based accessory

liability regime for copyright sketched out in Section

C.I. It would thus step in to ensure income for creators

where the rules of liability reach their practical or

legal limits. In this way, providers would be called

upon to contribute nancially to the creativity

displayed on their platforms. Conversely, where the

new exception would not apply – most obviously,

in cases of commercial use of protected works – or

where the platform refuses to cooperate, the liability

system would intervene. No fair compensation

would be generated, but right-holders would be

able to exercise their exclusive rights against those

engaging in infringement – including, where their

conduct and mental involvement justies this,

Internet intermediaries. If intermediaries cannot

be held liable themselves, the system would ensure

that, following notication of the infringement,

they may be obliged to take proportionate action to

remove or prevent the infringement.

180 JP Quintais, Copyright in the Age of Online Access: Alternative

Compensation Systems in EU Law (Kluwer Law International

2017) 245-325; JP Quintais, Rethinking Normal Exploitation:

6 AMI: Tijdschrift voor Auteurs-, Media- & Informatierecht

197-205. For a roadmap on a exible interpretation of the

three-step test, see C Geiger and others, ‘Declaration: A

Balanced Interpretation of the Three-Step Test in Copyright

Law’ (2010) 1 JIPITEC L. 119 para 1 and C Geiger and others,

‘The Three-Step Test Revisited: How to Use the Test’s

Int’l L. Rev. 581-626.

106

The anticipated effect of the combined adoption

of these two mechanisms would allow breathing

space for online platforms to conduct their business

and innovate, while also adding a novel revenue

stream for right-holders – especially for creators

– and focusing enforcement measures on bad-faith

platforms that foster large-scale infringement. Users

and the public in general would benet from a rich

and diverse online ecosystem, where the risks of

content censorship and enforcement in the private

sphere are diminished, but possibilities for online

enjoyment, expression and creation are promoted.

Our proposal could thus bridge the “value gap”

in a way that is consistent with the objectives of

D. Conclusion

107 Current EU copyright law is broken, at least insofar

as it applies to mass scale online use. In an attempt

to update and x the legal framework, the new DSM

Directive includes a so-called “value gap” provision

in Article 17, aimed at enhancing the responsibility

of certain user-upload content-sharing platforms.

This provision imposes obligations that risk

incompatibility with existing law and the Charter

of Fundamental Rights of the EU. The result, we fear,

will be increased legal uncertainty and a legal regime

that is more prone to chilling, rather than fostering,

innovation. We argue that a fundamental problem

with Article 17 is that is misunderstands the real

challenge with which EU copyright law struggles,

i.e. the proliferation of copyright infringement

online in general, resulting from highly complex and

fragmented rules on both primary and accessory

108

There are no perfect solutions to this challenge. Any

new proposal will have to be built on top of a highly

complex legal framework. Its benets and drawbacks

should be measured not against an ideal system, but

the current “value gap” provision and its potential

impact on the acquis.

109

In light of these constraints, we advance a pragmatic

alternative for xing EU copyright law through the

parallel implementation of two legal mechanisms.

The rst consists of the adoption of a harmonised

EU framework for accessory liability for third party

determining, among others, when an intermediary

– including content-sharing platforms – should be

held liable for its users’ infringements. The second

is an alternative compensation system for right-

holders covering non-commercial online use by

individuals in the context of user-upload platforms.

This entails the adoption of a mandatory exception

and fair compensation right in the context of a

2019

Christina Angelopoulos and João Pedro Quintais

172

statutory licensing system.

110

Our solution, like most levy-based systems,

undoubtedly represents a “rough justice” response

to a real world problem.181 However, when properly

calibrated along the lines suggested in this article,

such an approach could contribute to achieving the

“fair balance” between the rights and interests of

right-holders and users that the CJEU places at the

heart of EU copyright law and to which Article 17

only pays lip service. The joint operation of the two

proposed mechanisms would increase legal certainty

for all stakeholders, enable the development of the

information society, and provide fair compensation

for right-holders for uses of their works in the online

environment.

181 PB Hugenholtz and others, ‘The Future of Levies in the

Digital Environment: Final Report’ (Institute for Information

Law, March 2003)

id=223340> accessed 26 April 2019.

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