How to License Article 17? Exploring the Implementation Options for the New EU Rules on Content-Sharing Platforms

Abstract

How can the EU Member States license Article 17 of the new Directive on copyright and related rights in the Digital Single Market? This is the central question that this paper addresses. To answer it, we first analyse the nature of the right included in Article 17. We argue that the nature of the right has a number of serious consequences for its licensing. First, it determines whether the right is mandated by public international law, and hence what licensing modalities are allowed under the 1994 WTO TRIPS Agreement and 1996 WIPO treaties. Second, it clarifies what other conditions European Union law itself imposes on the newly established right and its implementation into national law. These restraints shape the margin of discretion of EU Member States. Third, it may imply changes to existing licensing practices, including the need for collective rights management organisations to obtain new mandates. Fourth, it influences how Member States can incorporate users' rights into the legal framework. We argue that Article 17 is a special or sui generis right. We identify how this right fits the existing international and EU law, and explain why the Member States have a broad margin of discretion when implementing the corresponding licensing regimes. Perhaps most importantly, and counter-intuitively, we show that the legal arguments against Article 17 licensing via modalities of statutory licensing and mandatory collective management schemes are weaker than one might initially think.This paper sets out several key interpretative arguments on the implementation of Article 17 of the DSM Directive. It examines the nature of the right of "communication to the public" in the provision, sketches the permissible licensing options, and maps implementation paths for Member States.The paper proceeds as follows. Section 2 provides a brief overview of the mechanics of Article 17. Section 3 then examines the nature of the provision's right of communication to the public, and Section 4 explores the potential authorisation mechanisms for it. Section 5 briefly examines Article 17's rights and safeguards for users. Section 6 concludes, offering a list of implementation options.

Mandate to overblock? Understanding the impact of the European Union's Article 17 on copyright content moderation on YouTube

“…To contextualize these results, it is important to note that national copyright regimes have always differed between France and Germany, the implementation of CDSMD with regard to timing and substance is not their only difference-but in general, the copyright regimes in France and Germany had been harmonized on a quite high level already before the CDSMD (Sganga et al, 2023). Since Article 17 of the CDSMD, as highlighted by legal scholars (Husovec & Quintais, 2021), is not merely a "clarification" of the existing law, but it changes the law in fundamental ways (Husovec & Quintais, 2021). So, while longstanding differences in the copyright regimes of the two countries might cause different blocking behaviors, we consider the early German implementation of the CDSMD a more plausible explanation for the observed differences.…”

Revisiting Access to Cultural Heritage in the Public Domain: EU and International Developments

“…Directive 2019/790/EU, Art. 17.179 Husovec and Quintas (2019).180 SeeLevendowski (2018).181 The PSID cites AI as an advanced technology ripe for innovation using public sector information.See Directive 2019/1024/EU, Recitals 3, 9, 10, and 13. See also "The Met x Microsoft x MIT," (Metropolitan Museum of Art), available at https://www.metmuseum.org/about-the-met/policies-and-documents/open-access/met-microsoft-mit (Accessed 1 October 2019).…”