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.

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]

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

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

Bibtex

Article{Quintais2020b, title = {Safeguarding User Freedoms in Implementing Article 17 of the Copyright in the Digital Single Market Directive: Recommendations from European Academics}, author = {Quintais, J. and Frosio, G. and van Gompel, S. and Hugenholtz, P. and Husovec, M. and Jütte, B.J. and Senftleben, M.}, url = {https://www.jipitec.eu/issues/jipitec-10-3-2019/5042}, year = {0225}, date = {2020-02-25}, journal = {JIPITEC}, volume = {vol. 10}, number = {nr. 3 - 2019}, pages = {}, keywords = {Article 17, Content-Sharing Service Providers, Copyright, digital content, Digital Single Market, DSM Directive, exceptions and limitations, Licensing, Online services, Platforms}, }

The New Copyright in the Digital Single Market Directive: A Critical Look external link

European Intellectual Property Review, vol. 42, num: 1, pp: 28-41, 2020

Abstract

This article provides an overview and critical examination of the new Directive on copyright and related rights in the Digital Single Market. Despite some positive aspects, the Directive includes multiple problematic provisions, including the controversial new right for press publishers and the new liability regime for content-sharing platforms. On balance, the Directive denotes a normative preference for private ordering over public choice in EU copyright law, and lacks adequate safeguards for users. It is also a complex text with multiple ambiguities, which will likely fail promote the desired harmonization and legal certainty in this area.

Collective licensing, Copyright, digital content, Digital Single Market, EU law, exceptions and limitations, frontpage, Licensing, Online services, text and data mining

Bibtex

Article{Quintais2019e, title = {The New Copyright in the Digital Single Market Directive: A Critical Look}, author = {Quintais, J.}, url = {https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3424770}, year = {0107}, date = {2020-01-07}, journal = {European Intellectual Property Review}, volume = {42}, number = {1}, pages = {28-41}, abstract = {This article provides an overview and critical examination of the new Directive on copyright and related rights in the Digital Single Market. Despite some positive aspects, the Directive includes multiple problematic provisions, including the controversial new right for press publishers and the new liability regime for content-sharing platforms. On balance, the Directive denotes a normative preference for private ordering over public choice in EU copyright law, and lacks adequate safeguards for users. It is also a complex text with multiple ambiguities, which will likely fail promote the desired harmonization and legal certainty in this area.}, keywords = {Collective licensing, Copyright, digital content, Digital Single Market, EU law, exceptions and limitations, frontpage, Licensing, Online services, text and data mining}, }

Copyright in the Age of Online Access: Alternative Compensation Systems in EU Law external link

Kluwer Law International, 2017, Series: Information Law Series, ISBN: 9789041186676

Abstract

This book examines pragmatic legal solutions that enable Internet users to access works in the digital environment by exploring the flexibilities in EU copyright law in search of a consistent regulation of non-commercial online use. In addition to proving virtually impossible, online enforcement of copyright may be undesirable because it risks encroaching upon fundamental rights and freedoms. However, the problem remains that creators are often not fairly remunerated for the online use of their works. This book addresses the need for legalisation schemes that favour remunerated access over exclusivity and enforcement for large-scale online use by individuals, while assuring remuneration to rights holders and promoting the development of the information society.

academic research, Berne Convention, Charter of Fundamental Rights of the European Union, CJEU, collective rights management, communication to the public right, compensation systems, Copyright, Digital Single Market, EU copyright law, exceptions and limitations, fair balance, fair compensation, frontpage, Internet, Kluwer Information Law Series, online intermediaries

Bibtex

Book{Quintais2017, title = {Copyright in the Age of Online Access: Alternative Compensation Systems in EU Law}, author = {Quintais, J.}, url = {https://lrus.wolterskluwer.com/store/products/copyright-age-online-access-alternative-compensation-systems-eu-law-prod-9041186670/hardcover-item-1-9041186670#details}, year = {2017}, date = {2017-05-29}, volume = {40}, pages = {}, abstract = {This book examines pragmatic legal solutions that enable Internet users to access works in the digital environment by exploring the flexibilities in EU copyright law in search of a consistent regulation of non-commercial online use. In addition to proving virtually impossible, online enforcement of copyright may be undesirable because it risks encroaching upon fundamental rights and freedoms. However, the problem remains that creators are often not fairly remunerated for the online use of their works. This book addresses the need for legalisation schemes that favour remunerated access over exclusivity and enforcement for large-scale online use by individuals, while assuring remuneration to rights holders and promoting the development of the information society.}, keywords = {academic research, Berne Convention, Charter of Fundamental Rights of the European Union, CJEU, collective rights management, communication to the public right, compensation systems, Copyright, Digital Single Market, EU copyright law, exceptions and limitations, fair balance, fair compensation, frontpage, Internet, Kluwer Information Law Series, online intermediaries}, }

Alternative compensation models for large-scale non-commercial online use of works external link

pp: pp. 298-306, 2016

Abstract

This paper briefly discusses an alternative legal model to assure remuneration for non-commercial mass online uses by individuals, covered by the exclusive rights of reproduction and communication/making available to the public in Directive 2001/29/EC. Alternative compensation systems (ACS) are legal mechanisms that forsake the need for direct authorization of end-user acts under the aforementioned rights – downloading, uploading, sharing, modifying –, while simultaneously ensuring compensation to creators (i.e. authors and performers) or all rights holders of works included in the scheme. After providing some background, the paper explains the concept of ACS, outlines the legal models and challenges to its implementation and reports on the results of an ongoing interdisciplinary research project on the legal and socioeconomic feasibility of such systems carried out by the Institute for Information Law (IViR), University of Amsterdam. Chief among the findings are the willingness of users to pay for and participate in an ACS, its quantification and, using the case-study of recorded music, the realization that such a model holds the promise of being welfare increasing.

ACI ADAM, alternative compensation systems, Auteursrecht, collective rights management, content flat-rate, Copydan, Copyright, exceptions and limitations, Infosoc Directive, Intellectuele eigendom, levies, private copy

Bibtex

Article{nokey, title = {Alternative compensation models for large-scale non-commercial online use of works}, author = {Quintais, J.}, url = {https://ssrn.com/abstract=2625492}, doi = {https://doi.org/ https://doi.org/10.1515/9783110478198}, year = {1201}, date = {2016-12-01}, abstract = {This paper briefly discusses an alternative legal model to assure remuneration for non-commercial mass online uses by individuals, covered by the exclusive rights of reproduction and communication/making available to the public in Directive 2001/29/EC. Alternative compensation systems (ACS) are legal mechanisms that forsake the need for direct authorization of end-user acts under the aforementioned rights – downloading, uploading, sharing, modifying –, while simultaneously ensuring compensation to creators (i.e. authors and performers) or all rights holders of works included in the scheme. After providing some background, the paper explains the concept of ACS, outlines the legal models and challenges to its implementation and reports on the results of an ongoing interdisciplinary research project on the legal and socioeconomic feasibility of such systems carried out by the Institute for Information Law (IViR), University of Amsterdam. Chief among the findings are the willingness of users to pay for and participate in an ACS, its quantification and, using the case-study of recorded music, the realization that such a model holds the promise of being welfare increasing.}, keywords = {ACI ADAM, alternative compensation systems, Auteursrecht, collective rights management, content flat-rate, Copydan, Copyright, exceptions and limitations, Infosoc Directive, Intellectuele eigendom, levies, private copy}, }

Private Copying and Downloading from Unlawful Sources external link

IIC - International Review of Intellectual Property and Competition Law, vol. 46, num: 1, pp: 66-92, 2014

Abstract

Private copying is one of the most contested areas of EU copyright law. This paper surveys that nebulous area and examines the issue of copies made from unlawful sources in light of the ECJ’s ACI Adam decision. After describing the legal background of copyright levies and the facts of the litigation, the paper scrutinizes the Advocate General’s Opinion and the Court’s decision. The latter is analyzed against the history of copyright levies, the ECJ’s extensive case-law on the private copying limitation and Member States’ regulation of unlawful sources. This paper further reflects on the decision’s implications for end-users, rights holders, collective management organizations and manufacturers/importers of levied goods. It concludes that, from a legal and economic standpoint, the decision not only fails to be properly justified, but its consequences will likely diverge from those anticipated by the Court. Most worrisome is the Court’s stance on the three-step test, which it views as a restrictive, rather than enabling, clause. In its interpretation of the test, the decision fails to strike the necessary balance between competing rights and interests. This is due to multiple factors: overreliance on the principle of strict interpretation; failure to consider the fundamental right of privacy; lack of justification of the normative and empirical elements of the test’s second condition; and a disregard for the remuneration element in connection with the test’s third condition. To the contrary, it is argued that a flexible construction of the three-step test is more suited to the Infosoc Directive’s balancing aims.

ACI ADAM, alternative compensation systems, Auteursrecht, collective rights management, content flat-rate, Copyright, exceptions and limitations, Information Influx Conference, Infosoc Directive, Intellectuele eigendom, IViR, levies, private copy

Bibtex

Article{nokey, title = {Private Copying and Downloading from Unlawful Sources}, author = {Quintais, J.}, url = {http://link.springer.com/article/10.1007/s40319-014-0295-7}, doi = {https://doi.org/10.1007/s40319-014-0295-7}, year = {2014}, date = {2014-10-29}, journal = {IIC - International Review of Intellectual Property and Competition Law}, volume = {46}, number = {1}, pages = {66-92}, abstract = {Private copying is one of the most contested areas of EU copyright law. This paper surveys that nebulous area and examines the issue of copies made from unlawful sources in light of the ECJ’s ACI Adam decision. After describing the legal background of copyright levies and the facts of the litigation, the paper scrutinizes the Advocate General’s Opinion and the Court’s decision. The latter is analyzed against the history of copyright levies, the ECJ’s extensive case-law on the private copying limitation and Member States’ regulation of unlawful sources. This paper further reflects on the decision’s implications for end-users, rights holders, collective management organizations and manufacturers/importers of levied goods. It concludes that, from a legal and economic standpoint, the decision not only fails to be properly justified, but its consequences will likely diverge from those anticipated by the Court. Most worrisome is the Court’s stance on the three-step test, which it views as a restrictive, rather than enabling, clause. In its interpretation of the test, the decision fails to strike the necessary balance between competing rights and interests. This is due to multiple factors: overreliance on the principle of strict interpretation; failure to consider the fundamental right of privacy; lack of justification of the normative and empirical elements of the test’s second condition; and a disregard for the remuneration element in connection with the test’s third condition. To the contrary, it is argued that a flexible construction of the three-step test is more suited to the Infosoc Directive’s balancing aims.}, keywords = {ACI ADAM, alternative compensation systems, Auteursrecht, collective rights management, content flat-rate, Copyright, exceptions and limitations, Information Influx Conference, Infosoc Directive, Intellectuele eigendom, IViR, levies, private copy}, }

Legalizing File-Sharing: An Idea Whose Time Has Come – Or Gone? Report from the Information Influx Conference 2014 external link

Abstract

On 2-4 July 2014 Information Influx, the 25th anniversary conference of the Institute for Information Law (IViR) was held in Amsterdam. Integrated in the conference, on Friday, 4 July a panel entitled “Legalizing file-sharing: an idea whose time has come – or gone?” met.<br /> The panel’s moderator was Professor Bernt Hugenholtz (University of Amsterdam, IViR) and the panelists were scholars with groundbreaking research on the topic for the past decade: Professor Neil Netanel (University of California, Los Angeles), Professor Alexander Peukert (University of Frankfurt), Dr. Philippe Aigrain (La Quadrature du Net), Professor Séverine Dusollier (SciencesPo./École de droit).<br /> The panel was divided into four parts, which this report reflects. First, the moderator introduced the topic and the panelists. Second, IViR member Mr. Balázs Bodó offered a short presentation of an ongoing research project on the topic of debate. Third, each panelist commented on the topic from different perspectives. The panel discussion was then opened for comments from the audience and responses from the panel.

ACI ADAM, alternative compensation systems, Auteursrecht, collective rights management, content flat-rate, Copyright, exceptions and limitations, Information Influx Conference, Infosoc Directive, Intellectuele eigendom, IViR, levies, private copy

Bibtex

Article{nokey, title = {Legalizing File-Sharing: An Idea Whose Time Has Come – Or Gone? Report from the Information Influx Conference 2014}, author = {Quintais, J.}, url = {https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2510545}, year = {2014}, date = {2014-10-24}, abstract = {On 2-4 July 2014 Information Influx, the 25th anniversary conference of the Institute for Information Law (IViR) was held in Amsterdam. Integrated in the conference, on Friday, 4 July a panel entitled “Legalizing file-sharing: an idea whose time has come – or gone?” met.<br /> The panel’s moderator was Professor Bernt Hugenholtz (University of Amsterdam, IViR) and the panelists were scholars with groundbreaking research on the topic for the past decade: Professor Neil Netanel (University of California, Los Angeles), Professor Alexander Peukert (University of Frankfurt), Dr. Philippe Aigrain (La Quadrature du Net), Professor Séverine Dusollier (SciencesPo./École de droit).<br /> The panel was divided into four parts, which this report reflects. First, the moderator introduced the topic and the panelists. Second, IViR member Mr. Balázs Bodó offered a short presentation of an ongoing research project on the topic of debate. Third, each panelist commented on the topic from different perspectives. The panel discussion was then opened for comments from the audience and responses from the panel.}, keywords = {ACI ADAM, alternative compensation systems, Auteursrecht, collective rights management, content flat-rate, Copyright, exceptions and limitations, Information Influx Conference, Infosoc Directive, Intellectuele eigendom, IViR, levies, private copy}, }