by Eleonora Rosati writing on the IPKAT

by Eleonora Rosati writing on the IPKAT

Further to the release of the European Commission’s Proposal for a Directive on Copyright inwards the Digital Single Market, the give-and-take has focused on a number of aspects. The proposal to remedy the together with thus called ‘value gap’ (Article 13) [Katposts here] has attracted pregnant attending together with commentary.

Together with a grouping of scholars active inwards copyright issues, Professor Martin Senftleben (Vrije Universiteit Amsterdam) has published a Recommendation on measures to safeguard fundamental rights together with the opened upwards internet in the framework of the European Union copyright reform.

Professor Senftleben explains to a greater extent than inwards item the content of the proposal.

Here’s what he writes:

 “Article 13 of the Proposed Directive on Copyright inwards the Digital Single Market (DSMD) together with the accompanying Recital 38 are with the most controversial parts of the European Commission’s copyright reform package. Several Members United States (Belgium, the Czech Republic, Finland, Hungary, Ireland, the Netherlands [here] and Germany [here]) receive got submitted questions seeking clarification on aspects that are essential to the guarantee of fundamental rights inwards the European Union together with to the futurity of the Internet equally an opened upwards communication medium. 

A closer analysis of these questions inwards the low-cal of jurisprudence of the Court of Justice of the European Union (CJEU) shows that the measures contemplated inwards Article 13 DSMD tin hardly endure deemed compatible with the fundamental rights together with freedoms guaranteed nether Articles 8, xi together with xvi of the EU Charter of Fundamental Rights. The application of filtering systems that would outcome from the adoption of Article 13 DSMD would house a disproportionate burden on platform providers, inwards exceptional pocket-size together with medium-sized operators, together with atomic number 82 to the systematic screening of personal data, fifty-fifty inwards cases where no infringing content is uploaded. The filtering systems would equally good deprive users of the room for liberty of facial expression that follows from statutory copyright exceptions, inwards exceptional the quotation correct (Article 5(3)(d) of the InfoSoc Directive) and the correct to parody (Article 5(3)(k) of the InfoSoc Directive).

The adoption of Recital 38 DSMD would moreover atomic number 82 to a remarkable restriction of eligibility for the liability privilege next from Article xiv of the E-Commerce Directive. Recital 38 DSMD does non adequately reverberate the electrical flow condition quo inwards the expanse of the rubber harbour for hosting set downwardly yesteryear Article xiv E-Commerce Directive. Instead, it takes the assessment criteria of “promoting” together with “optimising the presentation” of user-generated content out of the specific context of the L’Oréal/eBay CJEU decision. The full general requirement of “knowledge of, or command over” infringing user-generated content is missing. In the absence of whatever reference to this cardinal requirement, Recital 38 DSMD is incomplete together with fails to depict an accurate film of the electrical flow conceptual contours of the rubber harbour for hosting.

Furthermore, in that place tin endure fiddling doubtfulness that according to the CJEU, Article fifteen of the E-Commerce Directive is fully applicable to user-generated content platforms together with intended to shield these platforms from full general monitoring obligations. The Court’s jurisprudence shows clearly that an obligation to filter whatever information uploaded to the server of a platform hosting user-generated content would atomic number 82 to a prohibited full general monitoring obligation together with endure incompatible with Article fifteen of the E-Commerce Directive.

In general, the Commission Proposal together with subsequent Council Presidency Compromise Proposals confuse together with mix dissimilar legal questions yesteryear bringing together the number of the orbit of the rubber harbour for hosting nether Article 14(1) of the E-Commerce Directive, together with the number of whether (and when) platform providers themselves acquit out an human activity of communication to Blue Planet together with fulfil the requirements of Article 3(1) of the InfoSoc Directive.

Looking for a rubber harbour

Considering the criteria which the CJEU developed inwards the context of Article 3(1) of the InfoSoc Directive, it becomes moreover apparent that the mere human activity of storing together with providing access to Blue Planet is non sufficient to found copyright infringement. Recital 38 would dismiss additional infringement criteria that receive got evolved inwards the jurisprudence of the Court. Because of the ambiguous wording of Recital 38 DSMD, in that place is a existent take away chances of modifying the notion of “communication to the public” considerably.

These findings shed low-cal on the ask to clarify service provider immunity instead of farther complicating the legal assessment criteria. Influenza A virus subtype H5N1 farther clarification of applicable rules should extend the regulation that is already reflected inwards the EU acquis, namely that providers are non liable for users’ actions which they cannot reasonably endure expected to know together with command (Articles 12 to xiv of the E-Commerce Directive). Influenza A virus subtype H5N1 farther clarification of this dominion is advisable to pave the means for a uniform application of service provider immunity throughout the internal market. In the involvement of legal certainty together with a higher degree of harmonization, a well-structured European legislative blueprint of the “notice together with takedown” physical care for should endure introduced, accompanied yesteryear an appropriate “counter notice” procedure.

In addition, it would endure consistent with the existing acquis to innovate a novel role privilege inwards favour of the creation of content remixes together with mash-ups yesteryear users together with the farther dissemination of these remixes together with mash-ups on online platforms. As a countermove, online platforms with user-uploaded content could endure responsible for the payment of fair compensation. They could either buy the farm on these additional costs to their users, or role a business office of their advertising income to finance the payment of fair compensation. To generate an additional revenue flow for authors together with performers, this alternative solution is clearly preferable. It does non encroach upon fundamental rights together with freedoms, together with leaves intact the rubber harbour for hosting inwards Article xiv of the E-Commerce Directive.”