Sharing Content Online in the Digital Single Market and the Freedom of Expression of the User
MIPLC Master Thesis Series (2018/19)
72 Pages Posted: 12 Oct 2020
Date Written: September 12, 2019
This thesis analyses the impact of Article 17 of the Directive (EU) 2019/790 on copyright and related rights in the Digital Single Market (hereinafter referred to as DSM Directive) in the EU legal order, with a special focus on evaluating whether this provision secures the fair balance between the fundamental right to intellectual property, which encompasses copyright and related rights, and the right to freedom of expression of the user who uploads contents to an online content-sharing platform.
The operators of online content-sharing platforms provide users with a privileged arena for self-expression. However, users generate not only lawful ‘user-created content’ but also content that may encroach upon rights on copyright-protected works and other protected subject matter of third parties. In such cases, there may be a conflict with the exclusive right of reproduction and of the exclusive right of communication to the public and of making available to the public as regulated respectively in Art. 2 and 3 of the Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society.
At the EU level, for nearly two decades, in the case of operators of online platforms that hosted information at the request of users, Article 14 of the Directive 2000/31/EC on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market, has been the point of reference. The key issue has been the definition of the circumstances under which the operator may benefit from exemption from liability.
The provisions contained in Article 17 of the DSM Directive were meant to strengthen the position of rightholders in relation to online content-sharing service providers. On one hand, Art. 17 of the DSM Directive may have introduced a novel concept of right of communication to the public, an obligation to seek licenses burdening the online content-sharing service providers, and an intricate regime of exemption from liability for those service providers that leaves room for the adoption of automated filtering technologies. On the other hand, Article 17 of the DSM Directive encompasses measures aimed at safeguarding legitimate uses of copyright-protected works and other protected subject matter of third parties.
Upon critical analysis of the pre-existing law and of Article 17 of the DSM Directive, I concluded that it sets a new paradigm of regulation of the challenges arising from online content-sharing platforms and that it strikes a fair balance between the fundamental right to intellectual property and the fundamental right to freedom of expression since Member States have leeway to consider proportional legislative measures, which I proposed.
Keywords: InfoSoc Directive, E-Commerce Directive, digital single market, EU Copyright, liability, Article 17, online content-sharing service providers, right of communication to the public, user, freedom of expression, fundamental rights, legitimate uses, automated filtering technologies
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