Too Small to Matter? On the Copyright Directive’s Bias in Favour of Big Right-holders

in Global Intellectual Property Protection and New Constitutionalism. Hedging Exclusive Rights, Tuomas Mylly and Jonathan Griffiths (Eds.), Oxford University Press (2021)

21 Pages Posted: 29 Apr 2021

See all articles by Martin Husovec

Martin Husovec

London School of Economics - Law Department; Stanford University - Stanford Law School Center for Internet and Society

João Quintais

University of Amsterdam - Institute for Information Law (IViR)

Date Written: April 28, 2021

Abstract

Copyright law is about recognising the author’s material and non-material interests and setting the incentives for creativity right. The legislative changes in this area increasingly look as if simple linearity governs the world: what we take away from some, we automatically give away in equal part to others. The idea of redistribution is noticeable in recent legislative developments. Art. 17 of the Copyright in the Digital Single Market Directive (DSM Directive) is the latest policy intervention to prove this point. According to its logic, imposing stricter liability on some online gatekeepers will automatically improve the position and revenues for all right-holders. This chapter explores the flaws in such an approach by highlighting how the excessive focus of Art. 17 on big right-holders neglects and harms smaller creators.

EU copyright law often uses a technical term of ‘right-holders’ to refer to a wide range of players with legal entitlements in the copyright ecosystem: authors, performers, phonogram producers, film producers, broadcasting organisations and (most recently) press publishers. Obviously, not all right-holders are created equal nor do their legal entitlements flow from identical normative justifications. We argue in this chapter that even the use of this seemingly neutral term can, due to the design of underlying legal solutions, lead to stark inequality between right-holders. Our broader goal is to demonstrate that maximising enforcement by means of Art. 17 of the DSM Directive does not simply maximise the position of every right-holder at the expense of platforms but does so disproportionality for big right-holders. Besides, we show that blind use of ‘right-holder’ and ‘user’ distinction harms the very creators that provision is supposed to protect.

Keywords: copyright law, Article 17 CDSM, small creators, equal treatment, right holders, platforms

Suggested Citation

Husovec, Martin and Quintais, João, Too Small to Matter? On the Copyright Directive’s Bias in Favour of Big Right-holders (April 28, 2021). in Global Intellectual Property Protection and New Constitutionalism. Hedging Exclusive Rights, Tuomas Mylly and Jonathan Griffiths (Eds.), Oxford University Press (2021), Available at SSRN: https://ssrn.com/abstract=3835930

Martin Husovec (Contact Author)

London School of Economics - Law Department ( email )

Houghton Street
London WC2A 2AE, WC2A 2AE
United Kingdom

Stanford University - Stanford Law School Center for Internet and Society ( email )

559 Nathan Abbott Way
Stanford, CA 94305-8610
United States

João Quintais

University of Amsterdam - Institute for Information Law (IViR) ( email )

Rokin 84
Amsterdam, 1012 KX
Netherlands

HOME PAGE: http://https://www.ivir.nl/nl/medewerker/quintais/

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