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
 
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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.

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