How to License Article 17? Exploring the Implementation Options for the New EU Rules on Content-Sharing Platforms
41 Pages Posted: 14 Oct 2019 Last revised: 15 Sep 2020
Date Written: September 14, 2020
Article 17 of the Copyright in the Digital Single Market Directive is a major Internet policy experiment of our decade. The provision fundamentally changes copyright regulation of certain digital platforms. However, the precise nature of art. 17 is far from clear. How does it fit the existing structure of EU copyright law and doctrine? How can the Member States implement it? These are the questions at the heart of this article. To answer them, we start by examining the nature and structure of the right prescribed in art. 17. The exact qualification brings important legal consequences. Among others, it determines the conditions imposed by EU law and international law on national implementations. After reviewing different interpretation options, we conclude that art. 17 introduces either a special or a new sui generis right, both of which allow significant margin of discretion for Member States, especially as regards licensing mechanisms and exceptions.
Keywords: copyright law, intermediaries, Article 17, licensing, communication to the public, exceptions and limitations
JEL Classification: K29
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