EU copyright law round up – second trimester of 2021

Copyright law is about recognising the author’s material and non-material interests and setting the incentives for creativity right. The legislative changes in this area increasingly look as if simple linearity governs the world: what we take away from some, we automatically give away in equal part to others. The idea of redistribution is noticeable in recent legislative developments. Art. 17 of the Copyright in the Digital Single Market Directive (DSM Directive) is the latest policy intervention to prove this point. According to its logic, imposing stricter liability on some online gatekeepers will automatically improve the position and revenues for all right-holders. This chapter explores the flaws in such an approach by highlighting how the excessive focus of Art. 17 on big right-holders neglects and harms smaller creators. EU copyright law often uses a technical term of ‘right-holders’ to refer to a wide range of players with legal entitlements in the copyright ecosystem: authors, performers, phonogram producers, film producers, broadcasting organisations and (most recently) press publishers. Obviously, not all right-holders are created equal nor do their legal entitlements flow from identical normative justifications. We argue in this chapter that even the use of this seemingly neutral term can, due to the design of underlying legal solutions, lead to stark inequality between right-holders. Our broader goal is to demonstrate that maximising enforcement by means of Art. 17 of the DSM Directive does not simply maximise the position of every right-holder at the expense of platforms but does so disproportionality for big right-holders. Besides, we show that blind use of ‘right-holder’ and ‘user’ distinction harms the very creators that provision is supposed to protect.

Links

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3835930

Article 17, Copyright, equal treatment, frontpage, online platform

Bibtex

Chapter{HusovecQuintais2021-2,
	title = {Too Small to Matter? On the Copyright Directive’s bias in favour of big right-holders},
	author = {Husovec, M. and Quintais, J.},
	url = {https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3835930},
	year = {0429},
	date = {2021-04-29},
	abstract = {Copyright law is about recognising the author’s material and non-material interests and setting the incentives for creativity right. The legislative changes in this area increasingly look as if simple linearity governs the world: what we take away from some, we automatically give away in equal part to others. The idea of redistribution is noticeable in recent legislative developments. Art. 17 of the Copyright in the Digital Single Market Directive (DSM Directive) is the latest policy intervention to prove this point. According to its logic, imposing stricter liability on some online gatekeepers will automatically improve the position and revenues for all right-holders. This chapter explores the flaws in such an approach by highlighting how the excessive focus of Art. 17 on big right-holders neglects and harms smaller creators.

EU copyright law often uses a technical term of ‘right-holders’ to refer to a wide range of players with legal entitlements in the copyright ecosystem: authors, performers, phonogram producers, film producers, broadcasting organisations and (most recently) press publishers. Obviously, not all right-holders are created equal nor do their legal entitlements flow from identical normative justifications. We argue in this chapter that even the use of this seemingly neutral term can, due to the design of underlying legal solutions, lead to stark inequality between right-holders. Our broader goal is to demonstrate that maximising enforcement by means of Art. 17 of the DSM Directive does not simply maximise the position of every right-holder at the expense of platforms but does so disproportionality for big right-holders. Besides, we show that blind use of ‘right-holder’ and ‘user’ distinction harms the very creators that provision is supposed to protect.},
	keywords = {Article 17, Copyright, equal treatment, frontpage, online platform},
}

How to License Article 17? Exploring the Implementation Options for the New EU Rules on Content-Sharing Platforms under the Copyright in the Digital Single Market Directive external link

Quintais, J. & Husovec, M.

GRUR International - Journal of European and International IP Law, vol. 70, num: 4, pp: 325-348, 2021

Abstract

Article 17 of the Copyright in the Digital Single Market Directive is a major internet policy experiment of our decade. The provision fundamentally changes copyright regulation of certain digital platforms. However, the precise nature of Article 17 is far from clear. How does it fit the existing structure of EU copyright law and doctrine? How can the Member States implement it? These are the questions at the heart of this article. To answer them, we start by examining the nature and structure of the right prescribed in Article 17. The exact qualification brings important legal consequences. Among others, it determines the conditions imposed by EU and international law on national implementations. After reviewing different interpretation options, we conclude that Article 17 introduces either a ‘special’ or a ‘new’ sui generis right, both of which allow significant margin of discretion for Member States, especially as regards licensing mechanisms and exceptions.

Links

Article 17, communication to the public, exceptions and limitations, frontpage, frontpage; copyright law, intermediaries, Licensing

Bibtex

Article{Quintais2021GRURInt,
	title = {How to License Article 17? Exploring the Implementation Options for the New EU Rules on Content-Sharing Platforms under the Copyright in the Digital Single Market Directive},
	author = {Quintais, J. and Husovec, M.},
	url = {https://doi.org/10.1093/grurint/ikaa200

},
	doi = {https://doi.org/https://doi.org/10.1093/grurint/ikaa200},
	year = {0218},
	date = {2021-02-18},
	journal = {GRUR International - Journal of European and International IP Law},
	volume = {70},
	number = {4},
	pages = {325-348},
	abstract = {Article 17 of the Copyright in the Digital Single Market Directive is a major internet policy experiment of our decade. The provision fundamentally changes copyright regulation of certain digital platforms. However, the precise nature of Article 17 is far from clear. How does it fit the existing structure of EU copyright law and doctrine? How can the Member States implement it? These are the questions at the heart of this article. To answer them, we start by examining the nature and structure of the right prescribed in Article 17. The exact qualification brings important legal consequences. Among others, it determines the conditions imposed by EU and international law on national implementations. After reviewing different interpretation options, we conclude that Article 17 introduces either a ‘special’ or a ‘new’ sui generis right, both of which allow significant margin of discretion for Member States, especially as regards licensing mechanisms and exceptions.},
	keywords = {Article 17, communication to the public, exceptions and limitations, frontpage, frontpage; copyright law, intermediaries, Licensing},
}

How to License Article 17? Exploring the Implementation Options for the New EU Rules on Content-Sharing Platforms external link

Husovec, M. & Quintais, J.

2020

Abstract

Article 17 of the Copyright in the Digital Single Market Directive is a major Internet policy experiment of our decade. The provision fundamentally changes copyright regulation of certain digital platforms. However, the precise nature of art. 17 is far from clear. How does it fit the existing structure of EU copyright law and doctrine? How can the Member States implement it? These are the questions at the heart of this article. To answer them, we start by examining the nature and structure of the right prescribed in art. 17. The exact qualification brings important legal consequences. Among others, it determines the conditions imposed by EU law and international law on national implementations. After reviewing different interpretation options, we conclude that art. 17 introduces either a special or a new sui generis right, both of which allow significant margin of discretion for Member States, especially as regards licensing mechanisms and exceptions. [This is a revised and updated version of a working paper first published in October 2019]

Links

Article 17, communication to the public, Copyright, exceptions and limitations, frontpage, intermediaries, Licensing

Bibtex

Article{Husovec2020c,
	title = {How to License Article 17? Exploring the Implementation Options for the New EU Rules on Content-Sharing Platforms},
	author = {Husovec, M. and Quintais, J.},
	url = {https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3463011},
	doi = {https://doi.org/10.2139/ssrn.3463011},
	year = {2020},
	date = {2020-09-29},
	abstract = {Article 17 of the Copyright in the Digital Single Market Directive is a major Internet policy experiment of our decade. The provision fundamentally changes copyright regulation of certain digital platforms. However, the precise nature of art. 17 is far from clear. How does it fit the existing structure of EU copyright law and doctrine? How can the Member States implement it? These are the questions at the heart of this article. To answer them, we start by examining the nature and structure of the right prescribed in art. 17. The exact qualification brings important legal consequences. Among others, it determines the conditions imposed by EU law and international law on national implementations. After reviewing different interpretation options, we conclude that art. 17 introduces either a special or a new sui generis right, both of which allow significant margin of discretion for Member States, especially as regards licensing mechanisms and exceptions.

[This is a revised and updated version of a working paper first published in October 2019]},
	keywords = {Article 17, communication to the public, Copyright, exceptions and limitations, frontpage, intermediaries, Licensing},
}

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

Quintais, J., Frosio, G., van Gompel, S., Hugenholtz, P., Husovec, M., Jütte, B.J. & Senftleben, M.

JIPITEC, vol. vol. 10, num: nr. 3 - 2019, 2020

Links

https://www.jipitec.eu/issues/jipitec-10-3-2019/5042

Article 17, Content-Sharing Service Providers, Copyright, digital content, Digital Single Market, DSM Directive, exceptions and limitations, Licensing, Online services, Platforms

Bibtex

How to license Article 17? Exploring the Implementation Options for the New EU Rules on Content-Sharing Platforms external link

Husovec, M. & Quintais, J.

2019

Abstract

How can the EU Member States license Article 17 of the new Directive on copyright and related rights in the Digital Single Market? This is the central question that this paper addresses. To answer it, we first analyse the nature of the right included in Article 17. We argue that the nature of the right has a number of serious consequences for its licensing. First, it determines whether the right is mandated by public international law, and hence what licensing modalities are allowed under the 1994 WTO TRIPS Agreement and 1996 WIPO treaties. Second, it clarifies what other conditions European Union law itself imposes on the newly established right and its implementation into national law. These restraints shape the margin of discretion of EU Member States. Third, it may imply changes to existing licensing practices, including the need for collective rights management organisations to obtain new mandates. Fourth, it influences how Member States can incorporate users’ rights into the legal framework. We argue that Article 17 is a special or sui generis right. We identify how this right fits the existing international and EU law, and explain why the Member States have a broad margin of discretion when implementing the corresponding licensing regimes. Perhaps most importantly, and counter-intuitively, we show that the legal arguments against Article 17 licensing via modalities of statutory licensing and mandatory collective management schemes are weaker than one might initially think.

Links

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3463011

Article 17, Copyright, DMS Directive, frontpage, Licensing, ontent sharing service providers, Platforms

Bibtex

Article{Husovec2019,
	title = {How to license Article 17? Exploring the Implementation Options for the New EU Rules on Content-Sharing Platforms},
	author = {Husovec, M. and Quintais, J.},
	url = {https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3463011},
	year = {1003},
	date = {2019-10-03},
	abstract = {How can the EU Member States license Article 17 of the new Directive on copyright and related rights in the Digital Single Market? This is the central question that this paper addresses. To answer it, we first analyse the nature of the right included in Article 17. We argue that the nature of the right has a number of serious consequences for its licensing. First, it determines whether the right is mandated by public international law, and hence what licensing modalities are allowed under the 1994 WTO TRIPS Agreement and 1996 WIPO treaties. Second, it clarifies what other conditions European Union law itself imposes on the newly established right and its implementation into national law. These restraints shape the margin of discretion of EU Member States. Third, it may imply changes to existing licensing practices, including the need for collective rights management organisations to obtain new mandates. Fourth, it influences how Member States can incorporate users’ rights into the legal framework. We argue that Article 17 is a special or sui generis right. We identify how this right fits the existing international and EU law, and explain why the Member States have a broad margin of discretion when implementing the corresponding licensing regimes. Perhaps most importantly, and counter-intuitively, we show that the legal arguments against Article 17 licensing via modalities of statutory licensing and mandatory collective management schemes are weaker than one might initially think.},
	keywords = {Article 17, Copyright, DMS Directive, frontpage, Licensing, ontent sharing service providers, Platforms},
}