Trying to Understand Article 13

Abstract

Article 13 is the most important and most controversial provision of the proposed EU Directive on Copyright in the Digital Single Market on which the EU member states and institutions have reached agreement in principle in February 2019. The final vote will be in the European Parliament in late March 2019.

This paper aims at analysing what the idea of article 13 is and how it might work out in practice. Which legal issues will arise, which preliminary questions will be put to the CJEU? It is not meant to argue for or against article 13. The article itself is taken as a given. This paper is merely a first attempt to look ahead and find out what could happen in practice.

What can internet intermediaries reasonably be expected to do?

In the end the courts will have to decide what the OCSSP’s and other providers can reasonably be expected to do. Unfortunately, article 13 gives very little guidance for this. It rather describes and creates very elaborate contradicting objectives and obligations.

There will be a continuing discussion all over the world about what which kind of ‘reasonable’ internet intermediary can ‘reasonably’ be expected to do: pay (share advertising income or other income) and/or take preventive or repressive action regarding copyright infringement, while balancing fundamental rights, especially free speech. The same, probably even more important, discussion will continue regarding hate speech, fake news and any other kind of ‘undesirable’ information.

Keywords: Copyright, OCSSP, article 13, DSM-directive