European Copyright Licensing and Infringement Liability Under Art. 17 DSM-Directive Compared to Secondary Liability of Content Platforms in the U.S. – Can We Make the New European System a Global Opportunity Instead of a Local Challenge?
2020 Zeitschrift für Geistiges Eigentum/Intellectual Property Journal (ZGE/IPJ), Forthcoming
79 Pages Posted: 16 Jun 2020 Last revised: 7 Jul 2020
Date Written: May 21, 2020
In this article, first, the dogmatic structure of Art. 17 DSM-Directive is analyzed in the overall context of EU law. It is shown that Art. 17 fits reasonably well into the system of EU fundamental rights, copyright law and provider safe harbors. On that basis, the entire Art. 17 licensing and liability structure is outlined and explained in detail thereby addressing many important concrete problems for implementation in the Member States.
Secondly, the article shows that in order to make Art. 17 work in an effective and proportionate way, fairly balancing the interests of large rightholders and OCSPs with the interests of individual authors and small rightholders as well as OCSP users, collective blanket licenses including extended collective licensing (ECL) mechanisms will be needed on the European market for as many content categories and uses as possible.
For the particularly problematic cases of ‘small-scale’ content and user-generated content, thirdly, the study proposes a system of effective and proportionate dynamic complementary coupling of algorithmic tools and human agents in copyright enforcement. In order to develop a realistic, workable proposal, the study draws on a comprehensive analysis of the underlying problems including comparative aspects in regard to U.S. and German law and practice of technological copyright enforcement. The basic idea is the following: Certain trusted users shall be able to flag content which from their point of view is covered by existing exceptions to copyright thereby paving the way to delayed takedown if their claim turns out to be plausible under a quantitative algorithmic check. This basic idea is complemented in this paper with a new category of trusted rightholders and ultimately developed into a dynamic, self-regulating system of process oriented complementary coupling of algorithmic tools and human agents.
The article does already include references to the German Discussion Proposal for the implementation of Art. 17 and discusses certain elements of the Proposal.
Keywords: DSM Directive, Digital Single Market Directive, Article 17, OCSP Liability, DMCA, Algorithmic Enforcement, Platforms, Copyright, Licencing, Licensing, Trusted User, Trusted Rightholder, Extended Collective License, 17 U.S.C sec. 512, Implementation of the DSM Directive
JEL Classification: K39
Suggested Citation: Suggested Citation