Safeguarding User Freedoms in Implementing Article 17 of the Copyright in the Digital Single Market Directive: Recommendations From European Academics

Quintais, João Pedro; Frosio, Giancarlo; Gompel, S. van; Hugenholtz, P.B.; Husovec, Martin; Jütte, Bernd Justin; Senftleben, Martin

doi:10.2139/ssrn.3484968

Cited by 14 publications

(10 citation statements)

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“…I conclude that unless, pursuant to the stakeholder discussions provision laid down in Article 17(10) of the CDSM Directive, the procedural safeguards suggested below are considered, the adoption of upload filters will violate OCSSPs and uploaders' Articles 6, 8 and 10 Convention rights, the E-Commerce Directive and the GDPR. Thus, it is suggested that, in addition to the invaluable user freedoms proposed by the literature (Quintais et al 2019), a human rights-compliant response to future Article 17 implementation, which can potentially help the standardisation of the EC's best practices guidance for cooperation, would be for the EC to take on board the following recommended safeguards.…”

Section: Resultsmentioning

confidence: 99%

“…In the internet era the impact of upload filters on human rights has become a central issue for legal scholarship. A growing body of research has investigated whether, relying on human rights as a benchmark, Article 17 of the CDSM Directive is a lawful response to the problem of online copyright infringement (Frosio and Mendis 2019;Geiger and Izyumenko 2019;Grisse 2019;Husovec 2019;Quintais et al 2019;Senftleben 2019). Surprisingly, however, little research has been conducted on the compatibility of Article 17 of the CDSM Directive with Articles 6, 8 and 10 ECHR, the E-Commerce Directive and the GDPR.…”

Section: Discussion Of Findingsmentioning

confidence: 99%

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‘Upload filters’ and human rights: implementing Article 17 of the Directive on Copyright in the Digital Single Market

Moreno

2020

International Review of Law, Computers & Technology

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This paper critically examines to what extent Article 17 of the EU Directive on Copyright in the Digital Single Market (CDSM) could be implemented in a way which complies with the right of online content-sharing service providers and uploaders to a fair trial, privacy and freedom of expression under Articles 6, 8 and 10 of the European Convention on Human Rights (ECHR), the E-Commerce Directive 2000/31 and the General Data Protection Regulation 2016/679. The analysis draws upon Article 17 CDSM Directive, the case-law of the Strasbourg and Luxembourg courts, and academic literature. It assesses the compliance of 'upload filters' with the European Court of Human Rights' (ECtHR) threepart, non-cumulative test to determine whether the obligations laid down in Article 17 can be implemented: firstly, that it is 'in accordance with the law'; secondly, that it pursues one or more legitimate aims contained in Article 8(2) and 10(2) Convention; and thirdly, that it is 'necessary' and 'proportionate'. The paper also evaluates the compatibility of upload filters with the ECtHR principle of presumption of innocence under Article 6 ECHR. It proposes that for Article 17 to be a human rights-compliant response, upload filters must be targeted specifically at online infringement of copyright on a commercial-scale.

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Section: Resultsmentioning

confidence: 99%

Section: Discussion Of Findingsmentioning

confidence: 99%

‘Upload filters’ and human rights: implementing Article 17 of the Directive on Copyright in the Digital Single Market

Moreno

2020

International Review of Law, Computers & Technology

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“…17 CDSM Directive promises to upset this elusive balance yet again. 87 This provision regulates the activities of so-called online-content sharing service providers, a type of hosting service providers, for copyright-protected content uploaded by their third-party users. 88 Under the new regime, these providers are now unequivocally directly liable for communicating to the public the content they host.…”

Section: Beyond Sampling: Fundamental Rights Implicationsmentioning

confidence: 99%

The Pelham Chronicles: sampling, copyright and fundamental rights

Jütte¹,

Quintais²

2021

Journal of Intellectual Property Law &Amp; Practice

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Market into National Law, 11 (2020) JIPITEC 115 para 1. 88 For the definition of "online content-sharing service providers" see art. 2(6) and supporting recitals 62 and 63 CDSM Directive. 89 The exact nature of art. 17(1), which stipulates that "an online content-sharing service provider performs an act of communication to the public or an act of making available to the public for the purposes of this Directive when it gives the public access to copyright-protected works or other protected subject matter uploaded by its users" is disputed. While some argue that Article 17(1) creates a lex specialis right of communication to the public, other maintain that the provision merely clarifies the scope of Article 3(1) InfoSoc Directive.

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“…Geiger and Izyumenko ( 2020 ), pp. 298–302; Quintais et al ( 2020 ); Snijders and van Deursen ( 2019 ), p. 1185; van Deursen and Snijders ( 2020 ), p. 1088; Senftleben ( 2020b ), pp. 764–765.…”

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confidence: 99%

“… 142 See Quintais et al ( 2020 ), p. 278, para. 11; Rosati ( 2020 ), p. 266; Stieper ( 2019 ), p. 715; The Bird & Bird IP Team ( 2020 ), p. 341.…”

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confidence: 99%

Collateral Damage: Reuse in the Arts and the New Role of Quotation Provisions in Countries with Free Use Provisions After the ECJ’s Pelham, Funke Medien and Spiegel Online Judgments

Hui

Döhl

2021

IIC

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This article examines the impact of the European Court of Justice’s Pelham decision (C-476/17) on reuse, including appropriation art, borrowing and plagiarism in the arts, especially in music. Insofar, the focus lies on countries that have operated before with broad free use provisions. Specifically, we consider the extent to which EU law permits quotation provisions to fill the gap left by free use limitations, which have been curtailed by the Pelham decision. As we explain, Pelham creates a more restrictive approach to certain unlicensed use of copyright materials in new works of artistic expression, including music appropriation. We present our research in four sections. First, we compare existing national free use and quotation provisions in four states subject to EU law regarding their respective wiggle room for unlicensed yet lawful reuse in the arts. Second, we explore how the ECJ’s interpretation of the InfoSoc quotation exception, particularly in the Pelham, Funke Medien and Spiegel Online judgments, minimises the leeway for reuse in the arts provided by these national quotation provisions, in comparison to free use provisions. (Information Society Directive, 2001/29/EC.) Third, we address possible objections to our position and explain why we believe the consequences of the ECJ decisions cannot be bypassed. (Copyright in the Digital Single Market Directive, (EU) 2019/790.) Finally, in the conclusion, we explore the consequences, including the need for legislative reform.

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Safeguarding User Freedoms in Implementing Article 17 of the Copyright in the Digital Single Market Directive: Recommendations From European Academics

Cited by 14 publications

References 0 publications

‘Upload filters’ and human rights: implementing Article 17 of the Directive on Copyright in the Digital Single Market

‘Upload filters’ and human rights: implementing Article 17 of the Directive on Copyright in the Digital Single Market

The Pelham Chronicles: sampling, copyright and fundamental rights

Collateral Damage: Reuse in the Arts and the New Role of Quotation Provisions in Countries with Free Use Provisions After the ECJ’s Pelham, Funke Medien and Spiegel Online Judgments

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