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:
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 4th Open Knowledge Day took place on Tuesday 17 October 2023, with an accompanying workshop on 18 October 2023. This year it was organised by the Open Data and Intellectual Property Institute (ODIPI) and supported by Knowledge Rights 21 (KR21).
We invite you to the fourth Open Knowledge Day and the workshop, which will take place this year within the framework of the programme and with the support of Knowledge Rights 21. The event will bring together experts from different European countries to discuss two topics: the first part will deal with the legal basis for data analytics, which is a key part of machine learning and related artificial intelligence, and the general exception for research. In the second part, open science in theory and practice will be presented both in Slovenia and in some Western Balkan countries. Representatives of research and educational institutions from Slovenia and the Western Balkan countries, as well as interested members of the public, are invited to attend.
Dr. Maja Bogataj Jančič, a renowned expert in copyright law, has joined the Berkman Klein Center for Internet & Society at Harvard University, where she will serve as an affiliate researcher for the next two years.
On Friday, October 6, 2023, the online seminar “Practical Experiences in Resolving Copyrights of Modern Book Works” took place. The seminar addressed relevant questions concerning user access to literary works in digital form.