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To Filter or Not to Filter? That is the Question in EU Copyright Reform

41 Pages Posted: 2 Feb 2018  

Giancarlo Frosio

Université de Strasbourg - CEIPI; Stanford University - Stanford Law School Center for Internet and Society

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Date Written: October 25, 2017

Abstract

This article discusses the proposed introduction in EU law of an obligation for hosting providers to conclude licencing agreements with copyright holders and ensure their functioning by taking effective technological measures—such as content id technologies—to prevent copyright infringement on online platforms. This proposal is included in Article 13— and accompanying Recitals—of the European Commission’s Draft Directive on Copyright in the Digital Single Market of September 14, 2016, which forms an important part of the ongoing EU copyright reform. This article highlights the shortcoming of this proposed reform, which might fall short in terms of clarity, consistency with the EU acquis, appropriacy and proportionality. In doing so, the article discusses recent CJEU case law— such as GSMedia, Ziggo and Filmspeler—struggling with the notion of communication to the public in the digital environment. It highlights systemic inconsistencies between the traditional knowledge-and-take-down negligence-based intermediary liability system and the introduction of filtering and monitoring obligations. The article examines the appropriacy of filtering—and monitoring—measures within a fundamental rights perspective by considering proportionality between property rights’ enforcement and competing fundamental rights—such as freedom of expression, freedom of business and privacy. The critical review of the proposed reform serves as an opportunity to briefly advance an alternative proposal seeking a more pragmatical engagement with technological change through an arrangement enforcing a liability rule or an apportionment of profits and producing value for creators out of platform economy’s virality, while limiting negative externalities on users’ rights.

Keywords: copyright infringement; online platforms; EU copyright reform; CJEU case law

Suggested Citation

Frosio, Giancarlo, To Filter or Not to Filter? That is the Question in EU Copyright Reform (October 25, 2017). 36(2) Cardozo Arts& Entertainment Law Journal (2017 Forthcoming); Center for International Intellectual Property Studies (CEIPI) Research Paper No. 2017-16. Available at SSRN: https://ssrn.com/abstract=3116825

Giancarlo Frosio (Contact Author)

Université de Strasbourg - CEIPI ( email )

11 Rue de Marechal Juin
BP68
Strasbourg
France

HOME PAGE: http://www.ceipi.edu/en/ceipi/the-ceipi-team/giancarlo-frosio/

Stanford University - Stanford Law School Center for Internet and Society ( email )

559 Nathan Abbott Way
Stanford, CA 94305-8610
United States

HOME PAGE: http://https://cyberlaw.stanford.edu/about/people/giancarlo-frosio

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