Keyword: Auteursrecht
Safeguarding User Freedoms in Implementing Article 17 of the Copyright in the Digital Single Market Directive: Recommendations from European Academics external link
Panel discussion at CPDP 2020: We need to talk about filters: algorithmic copyright enforcement vs data protection. external link
Abstract
The new Copyright in the Digital Single Market (DSM) Directive was published in May 2019. Its most controversial provision is Article 17 (ex 13), which creates a new liability regime for user-generated content platforms, like YouTube and Facebook. The new regime makes these platforms directly liable for their users’ uploads, without the possibility of benefiting from the hosting safe-harbour. This forces platforms to either license all or most of the content uploaded by users (which is near impossible) or to adopt preventive measures like filters. The likely outcome is that covered platforms will engage in general monitoring of the content uploaded by their users. This panel will discuss the issues raised by Article 17 DSM Directive and the model of algorithmic enforcement it incentivizes, with a focus on the freedom of expression and data protection risks it entails.
• Article 17 of the Copyright in the Digital Single Market Directive creates a new liability regime for user-generated content platforms.
• Does this provision introduce de facto the controversial upload filtering systems and, as a result, general monitoring of information in content-sharing platforms?
• Is Article 17 essentially in conflict with the GDPR and, in particular, the principle of minimisation and the right not to be subject to automated decision-making processes? What are the potential consequences of this provision on users’ freedom of expression?
• If Article 17 can negatively affect data protection and freedom of expression what are the possible legal and extra-legal responses to neutralise the risk?
Copyright, Data protection, frontpage, Privacy
RIS
Bibtex
Film Financing in the Digital Single Market: Challenges to Territoriality external link
Abstract
This article discusses the role of territorial licences for feature films against the background of judicial and market developments in the EU. Currently, territorial licences are deemed a cornerstone of the exploitation and financing of films in Europe. However, current models of film financing are under increasing pressure both from market developments such as the turbulent growth of global online video platforms, and from developments in EU law aimed at removing national territorial barriers to the Single Market. Examples are the rule of Union-wide exhaustion of the distribution right, the EU Portability Regulation and the country of origin rules for satellite broadcasting and online simulcasting. EU competition law sets additional limits to grants of territorial exclusivity, and prohibits clauses in broadcasting and pay television licences that prevent or restrict “passive” sales to consumers/viewers in non-licensed territories. The freedom of right holders to preserve territorial exclusivity by way of contract is likely to become increasingly vulnerable to EU competition law, as underlying territorial rights no longer support territorial grants. For the film sector where territorial exclusivity remains indispensable, the European Commission could create specific competition law rules in the form of “block exemptions”. Language exclusivity – i.e. exclusive grants of rights for distinct language versions of a film – could provide a practical and legally more robust alternative to territorial licensing.
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Copyright, Digital Single Market, film, financing, frontpage, territoriality
RIS
Bibtex
Does the doctrine of exhaustion apply to videogames purchased digitally? French court says oui external link
How to license Article 17? Exploring the Implementation Options for the New EU Rules on Content-Sharing Platforms external link
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.
Article 17, Copyright, DMS Directive, frontpage, Licensing, ontent sharing service providers, Platforms
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Bibtex
Neighbouring Rights are Obsolete external link
Abstract
Neighbouring rights based on technological investment that do not provide for a threshold test and corresponding rule of scope, such as the phonographic right, the broadcaster’s right and Europe’s film producer’s right, are outdated and inherently unbalanced. The new press publisher’s right introduced by the EU DSM Directive is similarly unbalanced.
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Copyright, frontpage, minimum threshold, neighbouring right, pelham case, phonographic right, press publisher's right
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Bibtex
The Decline of Online Piracy: How Markets – Not Enforcement – Drive Down Copyright Infringement external link
Abstract
This article deals with the acquisition and consumption of music, films, series, books, and games through the various legal and illegal channels that exist nowadays, in a set of thirteen countries across the globe. The article has four aims. First, it provides an overview of the rules on liability for and enforcement of online copyright infringement in the countries studied. Second, it gives factual information about the state of authorized and unauthorized acquisition and consumption of these types of content. The third aim is to evaluate the underlying mechanisms and the link with enforcement measures and legal supply. Lastly, the article assesses the effect of online piracy on consumption from legal sources. To further these aims, the article combines different sources and empirical methods, including consumer surveys among nearly 35.000 respondents and comparative legal research. Our main conclusion is that online piracy is declining. The key driver for this decline is the increasing availability of affordable legal content, rather than enforcement measures. Where the legal supply of copyright-protected content is affordable, convenient and diverse, consumers are willing to pay for it and abandon piracy. Policymakers should therefore shift their focus from repressive approaches to tackle online infringement towards policies and measures that foster lawful remunerated access to copyright-protected content.
consumer survey, Copyright, enforcement, frontpage, intermediary liability, piracy
RIS
Bibtex
The New Copyright in the Digital Single Market Directive: A Critical Look external link
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 (TDM)