Some countries have already implemented the DSM Directive. The initially non-binding guidelines support the approach of Germany to the implementation, which explicitly introduces an ex-ante mechanism, which other Member States should follow suit. The guidelines are otherwise very loose and, according to critics, do not provide sufficient protection of users’ rights.

The long-awaited guidelines include a mechanism that allows rightholders to override safeguards against the automatic blocking of users’ uploaded content by claiming that the use of their work “could cause significant economic damage.” This suggests that this can be almost any content. The European Commission has thus not provided clear rules with guidelines to discourage abuse of the system, so the responsibility for respecting the fundamental rights of users will be in the hands of rightholders.

The latest version of the guidelines is, in fact, a step back from the European Commission’s original commitment to preserving the fundamental rights of users, which is required in particular from the point of view of the EU Charter of Fundamental Rights.

In the future, it will be interesting to follow the decision of the Court of Justice of the European Union in Poland v. European Commission, where Poland claims that Article 17 of the DSM Directive introduces censorship, which is inconsistent with both the Polish Constitution and the EU Charter of Fundamental Rights. According to some, the guidelines are an additional argument against Article 17 of the DSM Directive.

You can read more about the guidelines on the implementation of Article 17 of the DSM Directive here.