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!
On 23rd of November, 2021, the European Commission has published two reports in the field of copyright, as required by Directives 2014/26/EU (CRM Directive) and 2019/790 (DSM Directive). They are supported by two studies: Study on emerging issues on collective licensing management in the digital environment, and Study on selected issues relating to the application of the CRM Directive.
A new book “Law and Artificial Intelligence: Issues of Ethics, Human Rights and Social Harm” was published (Institute of Criminology at the Faculty of law in Ljubljana, 2021), the editors of which are prof. dr. Aleš Završnik and dr. Katja Simončič. The author of one of the articles is also dr. Maja Bogataj Jančič, LL.M., LL.M., who wrote an article on the topic of whether artificial intelligence can be an author of a copyright work.
Jožef Štefan Institute is organising GO-DIP workshop series, first of them coming on November 19th, 2021 is revolving around software IP and data agreements. The GO-DIP project aims to increase the competencies of knowledge generators and intermediaries. At 15.10 dr. Maja Bogataj Jančič, LL.M., LL.M. will be lecturing in the Workshop: Development of a checklist for model digital IP agreements. Welcome!
2nd GPAI Summit will occur from 11-12 November, 2021 in Paris, France. Leading international AI experts from civil society, academia, industry and governments, including ministerial-level delegates from GPAI’s Membership, will come together for GPAI’s annual event. This public-facing event will include reporting on the ten Working Groups’ study topics, including the reporting of Data Governance Working Group (DG WG). Public conferences will be broadcasted live on GPAI’s Youtube channel. Welcome!