The Interplay between the Digital Services Act and Sector Regulation: How Special is Copyright?

fortcoming in European Journal of Risk Regulation 2022

32 Pages Posted: 10 May 2021 Last revised: 8 Feb 2022

See all articles by João Pedro Quintais

João Pedro Quintais

University of Amsterdam - Institute for Information Law (IViR)

Sebastian Felix Schwemer

University of Copenhagen, Centre for Information and Innovation Law (CIIR); University of Oslo, Norwegian Research Center for Computers and Law (NRCCL)

Date Written: January 28, 2022

Abstract

On 15 December 2020, the European Commission published its proposal for the Digital Services Act, which is expected to be adopted before summer 2022. It carries out a regulatory overhaul of the 21-year-old horizontal rules on intermediary liability in the e-Commerce Directive and introduces new due diligence obligations for intermediary services.

Our analysis illuminates an important point that has so far received little attention: how would the Digital Services Act’s rules interact with existing sector-specific lex specialis rules? In this paper, we look specifically at the intersection of the Digital Services Act with the regime for online content sharing service providers (OCSSPs) set forth in art. 17 of Directive (EU) 2019/790 on copyright in the Digital Single Market (CDSM Directive). At first glance, these regimes do not appear to overlap as the rules on copyright are lex specialis to the Digital Services Act. A closer look shows a more complex and nuanced picture. Our analysis concludes that the DSA will apply to OCSSPs insofar as it contains rules that regulate matters not covered by art. 17 CDSM Directive, as well as specific rules on matters where art. 17 leaves margin of discretion to Member States. This includes, to varying degrees, rules in the DSA relating to the liability of intermediary providers and to due diligence obligations for online platforms of different sizes. Importantly, we consider that such rules apply even where art. 17 CDSM Directive contains specific (but less precise) regulation on the matter.

From a normative perspective, this might be a desirable outcome, to the extent that the DSA aims to establish “uniform rules for a safe, predictable and trusted online environment, where fundamental rights enshrined in the Charter are effectively protected”. Based on our analysis, we suggest a number of clarifications that might be help achieve that goal.

Keywords: Digital Services Act, Online Platforms, Content Moderation, Copyright, Copyright DSM Directive

Suggested Citation

Quintais, João Pedro and Schwemer, Sebastian Felix, The Interplay between the Digital Services Act and Sector Regulation: How Special is Copyright? (January 28, 2022). fortcoming in European Journal of Risk Regulation 2022, Available at SSRN: https://ssrn.com/abstract=3841606 or http://dx.doi.org/10.2139/ssrn.3841606

João Pedro Quintais (Contact Author)

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/

Sebastian Felix Schwemer

University of Copenhagen, Centre for Information and Innovation Law (CIIR) ( email )

Karen Blixens Plads 16
Copenhagen, 2300
Denmark

HOME PAGE: http://jura.ku.dk/schwemer

University of Oslo, Norwegian Research Center for Computers and Law (NRCCL)

Karl Johans gt. 47
Domus Academica
Oslo, Oslo 0130
Norway

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