Safeguarding User Freedoms in Implementing Article 17 of the Copyright in the Digital Single Market Directive: Recommendations from European Academics

• Author: João Pedro Quintais Giancarlo Frosio Stef van Gompel P. Bernt Hugenholtz Martin Husovec Bernd Justin Jütte Martin Senftleben
• Pages: 277-282

Safeguarding User Freedoms in Implementing Article 17 of the DSM Directive

2020

277

3

Safeguarding User Freedoms in

Implementing Article 17 of the Copyright

in the Digital Single Market Directive:

Recommendations from European Academics

© 2019 João Pedro Quintais, Gianca rlo Frosio, Stef van Gompel, P. Bernt Hugenholtz, Martin Husovec , Bernd Justin Jütte and

Martin Senftleben

Everybody may disseminate this ar ticle by electronic m eans and make it available for downloa d under the terms and

conditions of the Digital P eer Publishing Licence (DPPL). A copy of the license text may be obta ined at http://nbn-resolving.

de/urn:nbn:de:0009-dppl-v3-en8.

Recommended citation: Jo ão Pedro Quintais, Giancarlo Frosio et al., Safe guarding User Freedoms in Implementing Article 17

of the Copyright in the Digit al Single Market Directive, 10 (2019) JIPITEC 276 par a 1.

by João Pedro Quintais, Giancarlo Frosio, Stef van Gompel, P. Bernt

Hugenholtz, Martin Husovec, Bernd Justin Jütte and Martin Senftleben

A. Introduction

1

On 17 May 2019 the new Directive (EU) 2019/790

on copyright and related rights in the Digital

Single Market was ofcially published (DSM

Directive). Article 17 (ex-Article 13) is one of its

most controversial provisions. Article 17 tasks the

Commission with organizing stakeholder dialogues

to ensure uniform application of the obligation

of cooperation between online content-sharing

service providers (OCSSPs) and right-holders, and

to establish best practices with regard to appropriate

industry standards of professional diligence. In

the discussion on best practices, the provision

adds, “special account shall be taken, among other

things, of the need to balance fundamental rights

and of the use of exceptions and limitations.” This

document offers recommendations on user freedoms

and safeguards included in Article 17 of the DSM

Directive – namely in its paragraphs (7) and (9) –

and should be read in the context of the stakeholder

dialogue mentioned in paragraph (10).

B. Promoting Licensing and

Limiting Preventive measures

2

Article 17 provides OCSSPs with two avenues to avoid

direct liability for their users’ uploads. The default

avenue is for an OCSSP to obtain an authorisation

to communicate the content uploaded by users. The

provision suggests, as only one example, (direct)

licensing from the copyright holder but leaves open

other ways to acquire authorisation.1 Besides direct

licensing, additional options may include collective

licensing mechanisms (voluntary, extended or

mandatory), and statutory licensing (relying on

remunerated exceptions or limitations).

3

OCSSPs that do not obtain an authorization for their

users’ uploads can still avoid liability if they comply

with the conditions of the exemption mechanism

in Article 17(4). OCSSPs must demonstrate that they

have: (i) made best efforts to obtain an authorisation;

(ii) made best efforts to ensure the unavailability

of specic works for which the rightholders have

provided them with the relevant and necessary

information; and (iii) acted expeditiously, subsequent

to notice from rightholders, to take down infringing

content and made best efforts to prevent its future

upload.

4

The legislative design of Article 17 clearly favours

the rst – authorisation – avenue. As noted in the

statement by Germany accompanying the approval

of the Directive in the Council in April 2019, “in

the European compromise, licensing is the method

chosen to achieve” the authorization goal under

this provision.

2

This is in line with the Directive’s

1 See Article 17(1), second subparagraph, and 17(8), second

subparagraph DSM Directive.

2 See Draft Directive of the European Parliament and of the

Council on copyright and related rights in the Digital Single

Market amending Directives 96/9/EC and 2001/29/EC

(rst reading) – adoption of the legislative act – statements

(2019), in particular the Statement by Germany, para. 10.