One of the express aims of the DSM Copyright Directive, which is due to be implemented by the EU 27 by 7 June 2021, was to further harmonise Member State laws on copyright in the digital sphere. However, as is often the case, in a number of key areas the Directive only sketched the outlines of the compliance frameworks it mandated without filling in the detail. National legislators were effectively asked to “stick” (and transpose the Directive “as is”) or “twist” (and fill in the gaps themselves).
Nowhere is this more true than in relation to Article 17 – the new liability regime for platforms that share user-uploaded, copyright-protected content. The result is as [anyone reading the text of the Directive could have] anticipated: the emergence of diverging implementation proposals across Member States.
Some (The Netherlands) have opted for a relatively faithful transposition, leaving it to the market and the courts to add colour to the complexity. Others are considering complex compliance frameworks that seek to prescriptively determine the relationship between platforms (OCSSPs), their users, rightsholders, and the content that unites them all (eg German, Austria). Certain Member States have interpreted Article 17 to mean a compliance burden for rightsholders (Finland); whereas others seem to think the platforms must bear the brunt of the work (France). The latest commentary worth reading is this report from the CSPLA in France, which pushes back on some of the proposals we are seeing in Germany.
One thing is clear: nothing is clear right now. We await the Commission’s further guidance to national legislators on the implementation of Article 17, which cannot come soon enough. The current direction of travel is more complexity, more fragmentation and less efficiency for all players in the market.
The resulting reinterpretations of Article 17 – quantitative thresholds, unblocking based on user declarations, unblocking as an obligation of result or a probabilistic approach requiring unblocking on the basis of likely or manifestly licit use – appear, furthermore, highly impracticable and dangerous.