The Liability system of Art. 17 DSMD and national implementation - contravening prohibition of general monitoring duties?

Author:Gerald Spindler
Position:Holder of the chair of Civil Law, Commercial and Economic Law, Comparative Law, Multimedia- and Telecommunication Law and head of the Institute for Business Law at the University of Göttingen, Germany
Pages:344-374
SUMMARY

The article deals with the complex liability system of Art. 17 DSM Directive, the famous "upload filter provision" in copyright law concerning content sharing platforms. The conflict between the prohibition of general monitoring obligations for platform providers derived from European fundamental rights by the CJEU and the obligations of providers are scrutinized. Moreover, possible options for... (see full summary)

 
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2020
Gerald Spindler
344
3
The Liability system of Art. 17 DSMD
and national implementation
Contravening prohibition of general monitoring duties?
by Gerald Spindler*
© 2019 Gerald Spindler
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: Ger ald Spindler, The Liability system of Art. 17 DSMD and national implemen tation – contravening
prohibition of general moni toring duties? 10 (2019) JIPITEC 344 para 1.
by the CJEU and the obligations of providers are scru-
tinized. Moreover, possible options for national leg-
islators in order to safeguard fundamental rights of
users concerning freedom of speech (and copyright
limitations) are discussed.
Abstract: The article deals with the complex liability
system of Art. 17 DSM Directive, the famous “upload
filter provision” in copyright law concerning content
sharing platforms. The conflict between the prohi-
bition of general monitoring obligations for platform
providers derived from European fundamental rights
Keywords: Copyright liability; Service Provider; freedom of speech; copyright limitations; Upload-Filter; general
monitoring obligations; European fundamental rights; flagging content; Art. 17 Digital Single Market
Directive; user generated content; extended collective licenses
A. Introduction
1
Scarcely any EU directive has attracted so much
public attention as the new DSM-Directive,1 which
introduces obligations for service providers who
enable sharing of user-generated content, such as
* Prof. Dr. Gerald Spindler is holder of the chair of Civil
Law, Commercial and Economic Law, Comparative Law,
Multimedia- and Telecommunication Law and head of the
Institute for Business Law at the University of Göttingen,
Germany.
1 Directive (EU) 2019/790 of the European Parliament and of
the Council of 17 April 2019 on copyright and related rights
in the Digital Single Market and amending Directives 96/9/
EC and 2001/29/EC, OJ L 130, p. 92 ss. of 17.5.2019.
YouTube. The ght between rightholders on one
side and the internet community on the other,
fostered by large companies such as YouTube,
even ended up in public manifestations against one
article of the DSMD, Art. 17 (previously Art. 13). This
article deals with obligations of service providers
to control content on their platform, thus forming
an exception of the safe harbor privileges for
service providers enshrined in Art. 14 E-Commerce
Directive.2 It is obvious that such a control could
hamper rights of freedom of speech as well as access
to content – which is the legal ground for the claim
led by Poland against the DSMD and which lies
2 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, OJ L 178 p. 1 ss. of 17.7.2000.
The Liability system of Art. 17 DSMD and national implementation
2020
345 345
3
at the core of the following article. I will initially
shortly describe the existing system of copyright
liability for intermediaries (B) before turning to the
fundaments of Art. 17 DSMD (C.1) whose structure
is crucial for the constitutional analysis (C.3), in
particular concerning the prohibition of general
monitoring duties. Even if one does not follow the
constitutional arguments, they have to be considered
when implementing Art. 17 DSMD (D) which unfolded
concerning user rights etc. Finally, we will discuss
international private law implications (E), as well
as the legal situation for those providers who are
exempted from Art. 17 DSMD (F).
B. The Previous Liability System
for Intermediaries
2
Originally, service providers – which also include
operators of social networks or user-generated
content platforms like YouTube – were covered
without further question by the liability privilege
of Art. 14 E-Commerce Directive; meaning that they
could only be held liable after acquiring knowledge of
any illegal content, or only if, “as regards claims for
damages, (he) is not aware of facts or circumstances
from which the illegal activity or information is
apparent” (Art. 14 (1) sentence 1 (a) ECD) – which
the courts applied to YouTube accordingly, freeing
it from liability.
3
However, in the L’Oréal decision, the
CJEU made it clear that this privilege applies only
to passive, neutral service providers, not to those
who actively support users (e.g., through providing
assistance and optimising the presentation of
offers).4
3
From the beginning, injunctive reliefs on the grounds
of liability for interference (“Stoererhaftung”) have
remained unaffected by the liability privilege -
obligations which have in detail been formed by the
jurisprudence in numerous decisions, but cannot be
described here in detail. At its core, a host provider is
liable as an interferer (“Störer”) after notication by
the injured party regarding the future (!) omission of
infringing rights if he violates reasonable inspection
and control obligations (e.g. does not prevent that
new content of the same kind is loaded onto the
server).5 It should be noted, however, that even
3 Higher Regional Court Hamburg MMR 2016, 269; Higher
Regional Court Munich CR 2016, 750.
4 CJEU Case C-324/09 L`Oreal EU:C:2011:474, para 116.
5 Further details in Spindler in Spindler/Schmitz (eds),
Telemediengesetz, (2nd edn, CH Beck 2018), § 7 TMG paras
41 ff. with further proofs; see also Nico Gielen and Marten
Tiessen, “Die neue Plattformhaftung nach der Richtlinie
über das Urheberrecht im digitalen Binnenmarkt” [2019]
from a copyright perspective (up to now), the service
provider itself does not commit any infringement in
the sense that he is the offender or the infringer of
an exploitation right of a copyright holder; at most
he was a negligent side-perpetrator and therefore
(apart from the liability for interference) could
benet from the liability privilege according to Art.
14 E-Commerce Directive.
4
However, this assessment changed with the
development in CJEU case law on the right of making
available to the public, Art. 3 a) InfoSoc Directive.6
With the decisions in GS Media, Filmspeler und Pirate
Bay7 the CJEU already took the act of recovery far
into the eld of aid and its own actions.
8
Specically,
it concerned hyperlinking (GS Media), a platform
with piracy recommendations without hosting
content (Pirate Bay), or hardware products with pre-
set software that led to piracy platforms.
5
Whether the CJEU in the pending YouTube-
proceeding
9
would decide in the same manner is not
agreed upon, since in this case – unlike Filmspeler
and Pirate Bay – a targeted promotion of infringing
acts of property rights by third parties cannot be
concluded.10 Art. 17 (1) DSMD however, can be seen
EuZW 639, 640 ff.
6 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, OJ L 167/10 ff.
7 CJEU Case C-160/15 GS Media BV v Sanoma Media Netherlands
EU:C:2016:644, GRUR 2016, 1152 with comments by Ohly;
CJEU Case C-527/15 Filmspeler EU:C:2017:300, GRUR 2017,
610 with comments by Neubauer/Soppe; CJEU Case C-610/15
The Pirate Bay EU:C:2017:456, GRUR 2017, 790; Matthias
Leistner, “Die ‘The Pirate Bay’-Entscheidung des EuGH: ein
Gerichtshof als Ersatzgesetzgeber” [2017] GRUR 755.
8 Rightly critical Leistner, (n 7) 755; Matthias Leistner,
“Reformbedarf im materiellen Urheberrecht: Online-
Plattformen und Aggregatoren” [2016] ZUM 580, 583;
Matthias Leistner, “Anmerkung zu EuGH, Urteil vom 8.
September 2016 – EUGH C-160/15” [2016] ZUM 980; CJEU
Case C-160/15 GS Media BV v Sanoma Media Netherlands
EU:C:2016:644, GRUR 2016, 1152, 1155 with comments by
Ohly who speaks of a “substitute legislator“.
9 See the pending proceedings: Case C-682/18 YouTube and
Case C-683/18 Elsevier; to the order for reference: Federal
Court of Justice resolution of 13 September 2018 – I ZR
140/15, CR 2019, 100 ff.
10 Also the submitting Federal Court of Justice does not see
an individual illegal action by platforms such as YouTube
because of lack of knowledge and automation as given;
Federal Court of Justice CR 2019, 100 para 30 ff. with

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