On Online Platforms and the Commission's New Proposal for a Directive on Copyright in the Digital Single Market

Untangling the hyperlinking web: In search of the online right of communication to the public

“…An ex post obligation to remove or disable access to content after obtaining knowledge of the same typically occurs in notice‐and‐takedown systems and would be per se unproblematic. Conversely, ex ante measures, like proactive filtering, may conflict with the general prohibition on monitoring obligations in Article 15 ECD (Angelopoulos, , pp. 13–14).…”

“…The current trend of the CJEU and national courts is to consider hybrid platforms to be hosting providers, subject to duties of care (Angelopoulos, ). German courts, for instance, have developed an increasing list of detailed “verification and prevention obligations” that must be met by these intermediaries for them to benefit from safe harbors and possibly, to nudge them toward licensing solutions (Hilty & Moscon, , p. 104; Leistner, , pp.…”

“…It is not clear how these obligations—labeled by critics as requiring “mandatory upload filtering” by platforms—are consistent with the aforementioned hosting safe harbor and prohibition on general monitoring, as well with fundamental rights. Indeed, many scholars and other stakeholders argue they are not, as do at least two Committees in the European Parliament reviewing the legislation (Angelopoulos, ; Hilty & Moscon, ; Senftleben et al, ) . Furthermore, as this article shows, the contention that these platforms directly communicate works to the public is dubious as a matter of law and undesirable as a matter of policy.…”

The Recommendation on Measures to Safeguard Fundamental Rights and the Open Internet in the Framework of the EU Copyright Reform

“…This may conceivably represent a significant alleviation of the burden imposed on the provider, which might otherwise have been obliged to collect data on infringed content itself. 16 In addition, it has been suggested that, in the years since the Sabam v Netlog decision was handed down, less expensive and more efficient technologies have been developed for the identification of infringing content. 17 However, other research advises convincingly that content recognition technologies remain quite expensive for small and medium-sized businesses, particularly for start-ups.…”

“…Regardless of potential improvements in this area, the problems outlined in Sabam v Netlog vis-à-vis arts 8 and 11 CFR remain. 19 The Impact Assessment accompanying the Commission Proposal itself acknowledges that content recognition technologies continue to result in "false positives" (i.e. incorrect identifications and removals of content), an issue that is particularly pronounced as concerns transformative content, such as parodies.…”