The DSM Directive Five Years On

Abstract

Over five years have passed since the adoption of the EU Directive on Copyright and Related Rights in the Digital Single Market (‘DSM Directive’). As its title suggests, by adopting this directive, the EU legislature intended to tackle and realize the digital dimension of the EU single market from a copyright and related rights perspective. Yet, looking at the resulting national transpositions, it is highly doubtful that such an objective might be considered achieved. Meanwhile, the Court of Justice of the European Union (‘CJEU’) has been already referred questions on the interpretation of relevant provisions of the directive, in light of doubts regarding the compatibility between these and national transpositions thereof (ONB and Others, C-575/23 (Belgium); Meta Platforms Ireland, C-797/23 (Italy); Streamz and Others, C-663/24 (Belgium)).

The complexity of the situation is further increased by the adoption, after the DSM Directive, of horizontal legislation – including but not limited to the Digital Services Act (‘DSA’) – that, while not copyright-specific, also serve to construe relevant provisions of the directive and, insofar as the DSA in particular is concerned, be in a lex generalis to lex specialis relationship with, e.g., a key provision of directive like its Article 17.

By focusing in particular on Articles 15 and 17 of the DSM Directive, as transposed into national law, this contribution reflects critically on the current state of EU copyright and considers what the future might hold for this area of EU law. It ultimately concludes that the approach to copyright harmonization is in need of serious rethinking, and so are the goals and the legislative instruments needed to in this regard.

Keywords: copyright, DSM Directive, Article 15 DSM Directive, Article 17 DSM Directive, DSA, press publishers' right, OCSSPs