EU Proposal for a Directive on Copyright in the Digital Single Market: Compatibility of Article 13 with the EU Intermediary Liability Regime
Bilyana Petkova, Tuomas Ojanen (eds.), Fundamental Rights Protection Online: The Future Regulation of Intermediaries, 2019, Forthcoming
20 Pages Posted: 11 Jan 2019
Date Written: December 19, 2018
The stated aim of the new Copyright Directive is to strike the right balance between the position of authors, performers, and publishers on the one hand, and the internet platforms, which benefit of the works made accessible online, on the other. The discrepancy between the remuneration received by authors and the profit made by the platforms is known as the value gap. The way the proposed Copyright Directive is attempting to deal with this discrepancy is considered controversial by many. Due to a few particularly contentious provisions, the proposal even became the subject of heated public debates and protests. The key areas of contention relate to the mandatory filtering of content (Art. 13) and the so-called ‘link tax’ (Art. 11). The aim of this chapter is to look closer at the former. Art. 13 of the proposed Copyright Directive essentially enlists Internet hosting providers to police content of their users. The idea is not entirely novel, but the proposed obligations for hosting providers would go much further than ever before, changing their role in the copyright enforcement process from reactive to proactive. The next section will start with a brief description of the current legal framework applicable to online content sharing. The current legal framework is mainly defined by virtue of the E-Commerce Directive as well as the existing copyright framework. Next, an analysis will be made of the different (competing) versions of Art. 13 in order to identify similarities and differences. The chapter focuses on the compatibility of Art. 13 with the E-Commerce Directive and the jurisprudence of the Court of Justice of the European Union (CJEU).
Keywords: Copyright Directive, E-Commerce Directive, hosting providers, intermediary liability, monitoring, content sharing, content filtering
Suggested Citation: Suggested Citation