Article 17 at the Intersection of EU Copyright Law and Platform Regulation
Nordic Intellectual Property Law Review 3/2020, pp. 400–435
31 Pages Posted: 9 Jul 2020 Last revised: 16 Nov 2020
Date Written: June 1, 2020
The Directive on copyright in the Digital Single Market with its 86 recitals and 32 articles constitutes a major regulatory overhaul of European copyright legislation in light of the “[r]apid technological developments continue to transform the way works and other subject matter are created, produced, distributed and exploited.” It addresses a broad variety of issues ranging from certain exceptions and limitations such as text- and datamining, cross-border teaching activities and the preservation of cultural heritage, to licensing practices in relation to out-of-commerce works. It also introduces a new ancillary right for press publishers akin to previously introduced systems in, for example, Germany and Spain, addresses extended collective licensing and the remuneration of authors and performers.
The focus of this article, however, regards “certain uses of protected content by online services”. Already 19 years ago, i.e. before the rise of tech giants and gatekeeper platforms like Facebook, YouTube, Twitter, and others, the European legislator wisely noted that “[i]n the digital environment, in particular, the services of intermediaries may increasingly be used by third parties for infringing activities.” The InfoSoc Directive’s recital continues that therefore “[i]n many cases such intermediaries are best placed to bring such infringing activities to an end.” The DSM Directive establishes a novel regime for certain platforms and the use of copyright-pro- tected content in Article 17. In essence, the core of this provision is not about substantive copyright but rather the exploitation market for copyright-protected works. It constitutes a copyright sector-specific carve-out from the established intermediary liability rules and principles of EU Internet law. In this contribution, I first revisit the current intermediary liability regime. Then, I turn towards the mechanism of Article 17 of the DSM Directive, before looking at further tendencies in the regulation of intermediaries, and notably platforms, and conclude with a broader perspectivation of the issue.
Keywords: copyright law, platform regulation, Article 17, Directive (EU) 2019/790, content regulation, intermediary liability
JEL Classification: K24, K42
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