Art 17 DSM Directive implementation Across EU
New Art 17 of the Directive on copyright and related rights in the Digital Single Market is one of the most controversial ones, because it regulates a new liability regime for online content-sharing service providers (OCSSPs – online platforms) in regards to user uploads, whereas the new right is considered a “sui generis” right in relation to the communication to the public right contained in Art 3 of the InfoSoc Directive, as was explained in its Targeted consultation by the European Commission. One of the crucial issues of Art 17 implementation is the danger of over-usage of unsophisticated content filters that unjustifiably breach users’ freedom of expression.
While DSM Directive implementation deadline is fast approaching, EU member states find themselves at different stages of implementation procedures, which is no different for Art 17.
So far, only a handful of member states have introduced their implementation proposals, while others (including Slovenia) are most likely waiting for European Commission’s guidelines:
Netherlands is the first country to already adopt the legislation with which the DSM Directive will be transposed in its entirety. The Act was published on 29 December 2020 and most of its provisions will come into effect on 7 June 2021, the DSM Directive implementation date. In respect to Art 17, Netherlands opted for a near verbatim adoption, while allowing the Ministry to adopt additional rules after the fact, which enables them to coordinate Art 17 implementation with the Commission’s guidelines, once they are introduced.
Germany proposed a special separated act just for Art 17 implementation, which, on the one side contains a number of safeguards for users’ rights (e.g. de minimis exception allowing for free use of really short extracts), while on the other still allows for the use of upload filters.
Austrian Art 17 implementation proposal includes the DSM Directive’s text with the addition of certain elements that are aimed at minimising of upload over-blocking, providing user rights safeguards, and ensuring the direct remuneration for authors and creators. Thus, the Austrian proposal seems like the most reasonable implementation proposal to date.
Finland introduced its first implementation proposal at oral hearings last December. Their proposal, interestingly, provides for mandatory use of content recognition technology (filters), but the platforms will be able to remove such content only upon receiving a justified request from rightsholders. Despite its drawbacks, the Finnish proposal is another alternative implementation option which weighs between users rights and the rights of rightsholders.
All the different Art 17 implementation proposals present important guidance for the Slovenian legislator as well, as we are yet to see any Slovenian implementation proposals to date.
Art 17 implementation will be also discussed at the Open Knowledge Day 2021 organised by IPI in cooperation with the Today is a new day institute and Creative Commons. The event will take place on Wednesday, 20 January through Facebook Live, and Art 17 implementation will be discussed by Julia Reda, a former German MEP and the leader of the Control © Project as well. Welcome!
The Internet Archive will file an appeal against an unfair decision that ignores the value of the libraries’ work
The Internet Archive is a non-profit organization that maintains the Open Library, a digital library index, and is dedicated to preserving knowledge. As many of the works in the Internet Archive are under copyright, the Archive uses a system of controlled digital lending based on digital rights management to prevent unauthorized downloading or copying of copyrighted books. In March 2020, due to the circumstances surrounding the COVID-19 pandemic, the Internet Archive established the National Emergency Library, eliminating the waiting lists used in the Open Library and expanding access to books for all readers. In June 2020, the Emergency National Library faced a lawsuit from four book publishers and was ultimately closed.
The 43rd session of the WIPO Standing Committee on Copyright and Related Rights (hereinafter SCCR) made substantial progress on the issues advocated by the A2K Coalition (Access to Knowledge Coalition), which IPI is a member of. This year’s session was the most productive on the issues of exceptions and limitations. James Love (Knowledge Ecology International), a long-time observer at WIPO, described the outcome and the impact of the public interest community as the strongest since the conclusion of the Marrakech Treaty, which brought global copyright exceptions for the benefit of the blind and visually impaired.
Today, March 17, 2023, a symposium on law in the information society is taking place in the golden lecture hall of the Faculty of Law in Ljubljana. Dr. Maja Bogataj Jančič will present copyright aspects of artificial intelligence at the symposium.
The third day of the 43rd session of the WIPO Standing Committee on Copyright and Related Rights is intended for discussion on the topic of exceptions and limitations to copyright, especially in connection with the right to research.