The Directive on Copyright in the Digital Single Market (CDSM) entered into force on 7 June 2019 (20 days after publication in the Official Journal of the European Union). It must now be transposed by Member States into national law by 7 June 2021.
The Directive is a complex piece of legislation, 34 pages long. The most contested Article 17 is introduced by 11 recitals (61-71) and covers in 10 dense sections new obligations by “online content-sharing service providers”, a new class of services that communicate to the public copyright content uploaded by their users. It is likely that we’ll see widely diverging implementations, and decades of references to the Court of Justice of the European Union, which is already suffering from copyright overload.
This resource, developed in collaboration with reCreating Europe (an EU H2020 project), offers an independent academic perspective on the implementation of the directive, continuing previous work on the legislative process.
National consultations and transpositions by country
19 June 2020: Conseil de la Propriété intellectuelle (Council for Intellectual Property) has adopted an opinion on transposition of the CDSM Directive. The opinion includes a text of a draft bill (page 214), as well as a set of working documents. The opinion was adopted following a year of consultations with stakeholders (19 June 2019 to 19 June 2020).
26 June 2020: Public consultation on implementation of the CDSM Directive published by the Ministry of Culture. Three consultation documents concerning arts. 8-12 (no 2), 13-17 (no 3) and 18-23 (no 4) are available on the Ministry’s website. Consultation closed on 31 July 2020.
Consultation document concerning arts. 3-7 (no 1) was distributed earlier, and is now available on the Ministry’s website.
12 December 2020: Ministry of Culture publishes responses to the public consultation on the implementation of the CDSM Directive. Text of the responses is available here.
17 April 2020: Publication of a Draft Bill on Copyright and Related Rights implementing provisions of the CDSM Directive. The State Intellectual Property Office launched a public consultation on the Draft Bill, which was closed on 17 May 2020.
15 May 2020: Public presentation of the Draft Bill on Copyright and Related Rights organised by the State Intellectual Property Office.
7 October 2020: State Intellectual Property Office publishes the report on the public consultation of the Draft Bill. The report includes all 727 comments submitted during the consultation.
12 November 2020: Bill on Copyright and Related Rights presented in the Parliament (Hrvatski sabor).
10 December 2020: Parliamentary Committee for Information, Informatization and Media adopts a report on the Bill on Copyright and Related Rights.
5 February 2021: The Bill send back to the Ministry of Culture which will now prepare the final text of the Bill.
17 May 2020 Hrvatsko novinarsko društvo: HND protiv Prijedloga zakona o autorskim pravima: Autori u radnom odnosu zauvijek gube svoja autorska prava Croatian Journalists’ Association’s comment on the Draft Bill, including a proposal to create a special council to address the issue of “appropriate share of remuneration” for journalists
21 April 2021: Communia Association, The Croatian proposal to implement the new education exception: it could be better
9 October 2020: The Intellectual and Industrial Property Section of the Ministry of Energy, Commerce and Industry opens a public consultation on the implementation of the CDSM and CabSat Directives. The draft amendments to the Cypriot Copyright Act were open to comments till 5 November 2020.
1 July 2019: Ministry of Culture begins transposition process. The Ministry’s Copyright Department was tasked with consulting stakeholders via email and oral hearings.
6 November 2020: Ministry of Culture publishes draft bill implementing CDSM and CabSat Directives. The Draft Bill was open to comments till 7 December 2020. Submitted comments are available via document circulation system.
Along with the Draft Bill, the Ministry has published the explanatory memorandum and table outlining changes to the Copyright Act (comparison table).
2 November 2020: Danish Ministry of Culture announces a two-part timeline for the implementation of the CDSM and the CabSat Directives. While arts. 15 and 17 of the CDSM Directive and the CabSat Directive are going to be implemented before 7 June 2021, remaining provisions of the CDSM Directive will be transposed during the second part of 2021.
18 December 2020: Ministry of Culture opens consultation on the Draft Law amending Copyright Act which implements arts. 15 and 17 of the CDSM Directive and the CabSat Directive. The consultation closed on 22 January 2021.
Arts. 15 and 17 of the CDSM Directive are implemented by §1(9) of the Draft Law introducing Chapter 2b (Kapitel 2b Informationssamfundstjenester m.v.) to the Copyright Act.
The Draft Law is to be presented to the Parliament (Folketinget) by the end of March 2021.
26 March 2021: Ministry of Culture presents the Draft Law amending Copyright Act (L 205) to the Parliament. Text of the Draft Law and Comments are available here.
12 October 2020: Ministry of Justice presents a draft bill on implementation of the CDSM and CabSat Directives. The bill is accompanied by an Explanatory Memorandum and a comparison table.
1 December 2020: Ministry of Culture publishes its position on the draft bill.
15 March 2021: Ministry of Justice presents a draft bill on the implementation of the CDSM and CabSat Directives to the Government. The bill is accompanied by an Explanatory Memorandum and a comparison table.
May 2019: Ministry of Education and Culture information on preparation of legislation implementing the CDSM Directive. Website lists ongoing hearings and documentation concerning draft implementation law.
Transposition of Article 15 (press publishers’ right)
23 July 2019: Legislation adopted
24 October 2019: Enters into force
LOI n° 2019-775 du 24 juillet 2019 tendant à créer un droit voisin au profit des agences de presse et des éditeurs de presse
9 April 2020: French Competition Authority adopts interim measures against Google, ordering Google to negotiate with publishers and news agencies the remuneration due pursuant to the newly adopted press publishers’ right. Interim measures ordered following the complaints filed by several unions representing press publishers who claim that Google abuses its dominant position by refusing to pay remuneration pursuant to the new right.
Décision n° 20-MC-01 du 9 avril 2020 relative à des demandes de mesures conservatoires présentées par le Syndicat des éditeurs de la presse magazine, l’Alliance de la presse d’information générale e.a. et l’Agence France-Presse
2 July 2020: Google appeals the decision on interim measures
2 September 2020: L’Adlc receives a complaint from APIG about Google’s non-compliance with interim measures
3 September 2020: L’Adlc receives a complaint from Agence France-Presse about Google’s non-compliance with interim measures
8 October 2020: Paris Court of Appeal confirms L’Adlc decision on interim measures
19 November 2020: Google reaches an agreement with some of the French publishers. Talks with APIG are ongoing, with the possibility to reach framework agreement by the end of 2020.
21 January 2021: Google reaches an agreement with APIG
5 December 2019: Draft bill implementing arts. 17-22 CDSM tabled
Projet de Loi relatif à la communicationaudiovisuelle et à la souveraineté culturelle à l’ère numérique
January 2020: Mission Report: Towards more effectiveness of copyright law on online content sharing platforms: overview of content recognition tools and possible ways forward.
Report prepared jointly by the CSPLA (Higher Council on Literary and Artistic Property), HADOPI (High Authority for the Dissemination of Works and the Protection of Rights on the Internet) and the CNC (National Centre for Cinema and the Moving Image) to inform implementation of art. 17.
10 June 2020: CSPLA (Higher Council on Literary and Artistic Property) launches a mission on implementation of text and data mining exceptions (arts. 3 and 4)
8 July 2020: Senate adopts droit de l’Union européenne en matière économique et financière (so-called Ddadue law, which includes various provisions adapting national law to EU law). Art. 24bis authorises the government to issue ordonnances to implement the CDSM and CabSat Directives. An ordonnance implementing articles 2-6 and 17-23 of the CDSM Directive should be adopted within 6 months following adoption of the law (other ordonnances, within 12 months).
Senate’s legislation file
7 October 2020: Text of the Ddadue law approved by the National Assembly.
National Assembly’s legislation file
8 October 2020: Creation of a Joint Committee to reconcile texts of the Ddadue law adopted by the Senate and the National Assembly.
22 October 2020: Report of the Joint Committee adopted
18 December 2020: Mission Report: Transposition of exceptions of text and data mining: issues and proposals.
Report was commissioned by CSPLA and prepared by prof. Alexandra Bensamoun.
19 January 2021: Mission Report: Content recognition tools on digital sharing platforms: Proposals for the implementation of article 17 of the EU Copyright Directive
Second report prepared jointly by the CSPLA, HADOPI, and the CNC to inform implementation of art. 17.
12 May 2021: Ordonnance no 2021-580 implementing arts. 6(2) and 17-23 of the CDSM Directive adopted
1 July 2020: Next INpact Les projets de transposition des directives Droit d’auteur et Services de médias audiovisuels Franck Riester, Minister of Culture, declares that the core provisions of the bill tabled in December 2019 implementing, among others art. 17 CDSM Directive, might be adopted by an ordonnance to expedite the process
31 August 2020: Next INpact Le chantier de l’exception « text and data mining » au ministère de la Culture CSPLA mission on text and data mining has sent a questionnaire on implementation of arts. 3 and 4 to its members (answers welcome till 1 November 2020)
2 September 2020: Politico Google and French publishers fail to reach deal on fees for news content Lack of agreement between publishers and Google within the prescribed deadline. Google asks for one-month extension.
8 October 2020: Politico French court sides with press publishers in Google license fee stand-off Paris Court of Appeal confirms L’Adlc decision on interim measures against Google, while Google and APIG are close to reaching an agreement on licensing fees.
4 February 2021: Communia Association, France once more fails to demonstrate support for its interpretation of Article 17
September 2019: Consultation on transposition of CDSM and SatCab Directives:
Öffentliche Konsultation zur Umsetzung der EU-Richtlinien im Urheberrecht (DSM-RL (EU) 2019/790 und Online-SatCab-RL (EU) 2019/789)
15 January 2020: Discussion draft for a First Act to adopt copyright law to the requirements of Digital Single Market by the Federal Ministry of Justice and Consumer Protection (BMJV) concerning transposition of art. 15 (press publishers’ right) and arts. 3-7 of CDSM. Comments to the draft submitted by interested parties are available on BMJV website.
24 June 2020: Discussion draft for a Second Act to adapt copyright law to the requirements of the Digital Single Market by the Federal Ministry of Justice and Consumer Protection concerning transposition of remaining provisions of the CDSM Directive and CabSat Directive.
Working English translation of the draft on the copyright liability of service providers for sharing online content (art. 3 of the draft transposing art. 17 CDSM Directive) provided by BMJV
Discussion draft was open to public consultation till 31 July 2020.
13 October 2020: Draft bill for the law to adapt copyright law to the requirements of the digital single market published by the Federal Ministry of Justice and Consumer Protection (BMJV). The draft bill brings together previous two discussion drafts.
The draft bill was open to public consultation till 6 November 2020.
3 February 2021: Federal Government adopts the draft bill for the law to adopt copyright law to the requirements of the digital single market submitted by the BMJV
26 March 2021: First reading of the draft bill in Bundestag (Entwurf eines Gesetzes zur Anpassung des Urheberrechts an die Erfordernisse des digitalen Binnenmarktes (19/27426)). The Committee on Legal Affairs and Consumer Protection hosted a public hearing on the bill on 12 April 2021.
Implementation resources (in German):
[Bill proposal by TH Köln]
Rolf Schwartmann & Christian-Henner Hentsch (March 2020) Stufenkonzept gegen Overblocking durch Uploadfilter:
Ein Vorschlag der Kölner Forschungsstelle für Medienrecht der TH Köln
zur Umsetzung von Art. 17 der DSM-Richtlinie
[Opinion commissioned by Green party]Gerald Spindler (Dec 2019) Gutachten zur Urheberrechtsrichtlinie (DSM-RL): Europarechtliche Vereinbarkeit (Artikel 17), Vorschläge zur nationalen Umsetzung und zur Stärkung der Urheberinnen und Urheber
24 June 2020: netzpolitik.org CDU-Ministerien torpedieren Vorschläge für Schutz von Kreativen, Wissenschaft und Bildung Comment on the Federal Ministry of Economics and Energy (BMWi) and the Federal Chancellery positions on the First Act implementing CDSM Directive by Dr Till Kreutzer (includes the text of BMWi and the Chancellery’s statements)
30 November 2020: Open letter on the German draft law transposition of Article 17 of the Digital Single Market (DSM) Copyright Directive signed by IFPI, ACT, ANIMATION in EUROPE, CEPI TV, CEPIC, EMMA, ENPA, EPC, FEP, FIAD, FIAPF, ICMP, IMPALA, IMPF, IVF, IVF, MPA, NME, SROC, STM
26 February 2021: Communia Association, German government draft on Article 17: Two steps forward, one step back
19 September 2019: Minister of Culture and Sports establishes the Legislative Preparatory Committee. Committee’s tasks include implementation of the CDSM and CabSat Directives. Committee’s mandate lasted till 30 June 2020.
20 September 2019: Hellenic Copyright Organization’s (OPI) reaction to the Committee’s establishment.
13 April 2020: Public consultation on implementation of CDSM and CabSat Directives announced by the Hellenic Copyright Organization.
25 May 2020: Deadline for submissions to the consultation extended to 15 June 2020.
August 2019: Public consultation on the transposition of CDSM and CabSat Directives
Az IM és az SZTNH közös felhívása a szerzői jogi irányelvek átültetését érintő konzultációban való részvételre (Consultation notice published by the National Intellectual Property Office)
Consultation organised around seven topics: TDM exception (arts. 3-4); exception for use of works in digital and cross-border teaching activities (art. 5); out-of-commerce works (arts. 8-11); neighbouring right for press publishers (art. 15); liability of OCSSPs (art. 17); provisions governing the relationships between right holders and users (arts. 14, 16, 18 -23); the CabSat Directive.
7 May 2020: Publication of a Draft text on implementation of CDSM and CabSat Directives. Draft prepared by the Ministry of Justice and the National Office of Intellectual Property was open to consultation till 8 June 2020.
Summary of draft’s structure prepared by Dr Péter Mezei.
18 June 2020: Implementation of exception for use of works in digital and cross-border teaching activities (art. 5) as a part of a mix law concerning cessation of emergencies (Act LVIII of 2020, Official Gazzette (Magyar Közlöny), issue 144/2020). Amendments to Copyright Act implementing art. 5 CDSM are included in §§323-327 (pages 3732-3733 of the Gazzette). These articles amended arts. 34(3), (4), (5); 68(2) and 113(1) of Copyright Act, as well as introduced new arts. 33/A and 34(3a).
31 July 2020: Ministry of Justice and the National Office of Intellectual Property have distributed a second version of a Draft text on implementation of CDSM and CabSat Directives directly to stakeholders. Stakeholders were invited to submit their written comments by 14 August 2020.
Comment by Dr Péter Mezei.
31 March 2021: Bill on the implementation of the CDSM and CabSat Directives submitted to the National Assembly.
26 April 2021: National Assembly approves the Bill on the implementation of the CDSM and CabSat Directives.
6 May 2021: Act XXXVII of 2021 implementing the CDSM and CabSat Directives is published in the official gazette (p. 3184)
25 September 2019: Consultation on the transposition of Directive (EU) 2019/790 of the European Parliament and of the Council on copyright and related rights in the Digital Single Market and amending Directives 96/9/EC and 2001/29/EC – Consultation Paper No. 1 (Articles 13-17). Consultation closed 23 October 2019.
17 October 2019: Consultation on the transposition of Directive (EU) 2019/790 of the European Parliament and of the Council on copyright and related rights in the Digital Single Market and amending Directives 96/9/EC and 2001/29/EC (Directive on Copyright in the Digital Single Market) – Consultation Paper No. 2 (Articles 2-7). Consultation closed 14 November 2019.
6 November 2019: Consultation on the transposition of Directive (EU) 2019/790 of the European Parliament and of the Council on copyright and related rights in the Digital Single Market and amending Directives 96/9/EC and 2001/29/EC (Directive on Copyright in the Digital Single Market) – Consultation Paper No. 3 (Articles 8-11 on Out-of-Commerce Works and Article 12 on Collective licensing with an extended effect). Consultation closed 4 December 2019.
25 November 2019: Consultation on the transposition of Directive (EU) 2019/790 of the European Parliament and of the Council on copyright and related rights in the Digital Single Market and amending Directives 96/9/EC and 2001/29/EC (Directive on Copyright in the Digital Single Market) – Consultation Paper No. 4 (Articles 18-23 on Fair Remuneration). Consultation closed 23 December 2019.
30 January 2020: Schema di disegno di legge recante delega al Governi per il recepimento delle direttive europee e l’attuazione di altri atti dell’Unione europea – Legge di delegazione europea 2019 Bill of the Council of Ministers which includes guiding principles on implementation of the CDSM Directive (emphasis on the TDM exception).
14 February 2020: Legge di delegazione europea 2019 (bill no 1721) presented to the Senate. Principles for the transposition of the CDSM Directive are included in art. 9. Senate’s website provides information on works on the bill.
20 February 2020: Senate assigns Legge di delegazione europea 2019 to the Commission for European Affairs (14ª Commissione permanente Politiche dell’Unione europea).
Commission for European Affairs held a number of informal hearings (audizioni informali) on the Bill, inviting stakeholders to share their opinions on implementation of the CDSM Directive:
28 April 2020: RAI, Mediaset, Sky, Netflix (TV industry) (video recording)
5 May 2020: AGCOM, Vodafone, Open Fiber, Wind Tre, Fastweb, ASSIRM, CFWA, Iliad, TIM (telecommunication companies) (video recording)
7 May 2020: ANSO, EMusa, 100autori, ITSRIGHT, AIE (rightsholders associations) (video recording)
12 May 2020: FIEG, Confindustria Digitale, Confindustria Cultura Italia, ANICA, APA, FAPAV, AIB (video recording)
14 May 2020: FNSI, CRUI, SIAE, Wikimedia Italia, Google, Hermes, NUOVO IMAIE, FIMI, MPA, AISA, GOIPE, Creative Commons, Movimento Consumatori, ANAC Autori, Altroconsumo (video recording)
19 May 2020: Slc-Cgil, Fistel-Cisl, Uilcom-Uil, FPA Fotografi, Utilitalia, Motus-E, Neste (video recording)
Written submissions of invited stakeholders are available on Senate’s website.
9 September 2020: Commission for European Affairs adopts Legge di delegazione europea 2019.
English translation of art. 9 of the Bill which includes principles and guiding criteria for the transposition of the CDSM Directive and relevant amendments courtesy of Giulia Priora.
29 October 2020: Senate plenary approves Legge di delegazione europea 2019-2020. The Bill is passed to the Chamber of Deputies under docket no C2757 and assigned to the Commission on European Affairs (14ª Commissione permanente (Politiche dell’Unione europea))
31 March 2021: Chamber of Deputies approves Legge di delegazione europea 2019-2020. As the Bill was passed with amendments, the amended text needs to be approved by the Senate.
20 April 2021: Senate approves Legge di delegazione europea 2019-2020.
Roberto Caso’s website on Italian implementation of the CDSM Directive
29 April 2020: La Reppublica Copyright: arriva la legge Interview with Andrea Martella (Undersecretary of the Council of Ministers) on implementation of CDSM Directive in Italy. The directive to be transposed within a year, with the draft bills ready by the end of 2020.
28 April 2021: Communia Association, The Italian transposition of the CDSM Directive: A missed opportunity?
24 July 2019: Ministry of Culture creates a working group on the transposition of new copyright directives (order no 498).
12 November 2020: Ministry of Culture instructs the Working Group to put forward the proposal for amendments to the Lithuanian Copyright Act transposing the CDSM Directive by 31 December 2020 (order no 1365).
November 2020: Activity report of the Working Group. Report includes recommendations on the transposition of selected provisions of the CDSM Directive.
10 February 2021: Offic for Intellecutal Property (Ministry of the Economy) launches a public consultation on the preliminary draft law transposing the CDSM Directive. The text of the draft law with the explanatory notes is available here. Consultation is open till 2 April 2021.
20 August 2020: Ministry for Economy, Investment and Small Business opens a public consultation on the transposition of the CDSM Directive. The consultation document does not cover arts. 15 and 17. Consultation closed on 30 September 2020.
10 November 2020: Report on the consultation published by the Ministry for the Economy Investment and Small Businesses: Government response to the Consultation onthe Directive (EU) 2019/790 on copyright and related rights in the Digital Single Market and amending Directives 96/9/EC and 2001//29/EC. The Consultation received 6 responses, their text was not published. The CDSM Directive is to be transposed as a whole before 7 June 2021 deadline.
11 May 2020: proposal for the Copyright Directive Implementation Act submitted to the House of Representatives (Tweede Kamer)
23 June 2020: Report of the Committee on Justice and Security on the draft Implementation Act
17 November 2020: The House of Representatives adopts the Copyright Directive Implementation Act. The Bill now passes to the Senate (Eerste Kamer).
15 December 2020: The Senate adopts the Copyright Directive Implementation Act.
16 December 2020: The Copyright Directive Implementation Act receives royal assent.
29 December 2020: The Copyright Directive Implementation Act is published in the official journal (Staatsblad van het Koninkrijk der Nederlanden). Netherlands becomes the first country to implement the CDSM Directive in full.
25 June 2020: EFF comments to the Copyright Draft Implementation Bill: Article 17 C-DSM
24 May 2019: Poland brings an action for annulment of arts. 17(4)(b) and 17(4)(c) of the CDSM Directive before the CJEU. For more details on C-401/19 case see the CJEU case law section of the page.
30 July 2020: Public consultation on the transposition of CDSM and CabSat Directives announced by the Ministry of Culture. The consultation closed on 30 September 2020.
December 2020: Ministry of Culture publishes submissions to the public consultation on the transposition of CDSM and CabSat Direcitve. Consultation received 40 submissions in total.
Stakeholders responses to the Ministry’s consultation (in Polish):
Kreatywna Polska: Odpowiadamy na pytania MKiDN w sprawie dyrektywy reformującej prawo autorskie (30 September 2020)
KIPA: Stanowisko KIPA konsultacje kierunków implementacji dyrektywy o prawie autorskim na jednolitym rynku cyfrowym (30 September 2020)
SFP-ZAPA: Stanowisko SFP-ZAPA dot. sposobu wdrożenia w Polsce dyrektyw unijnych o prawie autorskim (7 October 2020)
2 July 2020: Polska Agencja Prasowa (PAP): Karta wolności w sieci: sprzeciw dla podatku od smartfonów, światłowód w każdym domu i sprzeciw wobec ACTA2 Andrzej Duda, Polish president seeking reelection signs “Internet Freedom Charter”. One of its postulates reads: no agreement on the European Union actions restricting internet freedom – no to ACTA2.
6 July 2020: Rzeczypospolita: ACTA 2: organizacje zrzeszające twórców o zapowiedzi prezydenta Creators’ organisations criticise President Duda’s stance on the CDSM Directive and the potential legislative veto of the bill implementing the Directive.
June-December 2019: First round of consultations organised by the Romanian Copyright Office involving 98 national stakeholders.
January 2020: Preliminary information on the implementation of the CDSM and CabSat Directives and invitation to submit written opinions and proposals
PI/2020/6 Predbežná informácia k návrhu zákona, ktorým sa mení a dopĺňa zákon č.185/2015 Z. z. Autorský zákon v znení neskorších predpisov
March 2020: consultations and invitation to submit written opinions on implementation of the CDSM and CabSat Directives
11 March 2020: consultation cancelled
20 March 2020: deadline for written opinions extended to 30 April 2020
5 June 2020: Ministry of Economic Development and Technology publishes stakeholders’ written submissions on implementation of the CDSM and CabSat Directives. Submissions were opened to comments till 30 June 2020.
November 2019: Public consultation on transposition of the CDSM and CabSat Directives
Consulta pública previa sobre un borrador de Anteproyecto de Ley sobre los derechos de autor y derechos afines en el mercado único digital europeo, por la que se incorporan al ordenamiento jurídico español la Directiva (UE) 2019/789 del Parlamento Europeo y del Consejo de 17 de abril de 2019, y la Directiva (UE) 2019/790 del Parlamento Europeo y del Consejo de 17 de abril de 2019. Consultation closed on 19 December 2019.
May 2019: Creation of a reference group by the Ministry of Justice to inform the implementation process. Over 80 organisations were invited to participate (list later expanded).
First meeting of the group was held on 18 June 2019. Seven future meetings to take place during the fall 2019 and spring 2020.
September 2019: Memorandum prepared by the Ministry of Justice and sent to the members of the reference group as basis for obtaining comments on the implementation of art. 17.
22 May 2020: Second memorandum by the Ministry of Justice on implementation of art. 17 shared with the members of the reference group. Opened for comments till 22 June.
January 2020: In response to a parliamentary question, the UK government says that it has no intention to implement the CDSM directive, and that it is not required to do so under the Brexit process.
It is not the purpose of this resource to catalogue the burgeoning legal literature on the Directive on Copyright in the Digital Single Market (CDSM). We try to compile interventions and publications that analyse implementation options, so that policy makers have ready access to a greater range of policy choices and an independent assessment of these. Publications that are not available in English but influential in national implementation debates are listed in the respective country sections.
European Copyright Roundtables: Implementing the Digital Single Market Directive
This is an academically brokered conversation, involving divergent interests and industry stakeholders.
The first roundtable took place in Brussels on 13 June 2019, focussing on Article 17. Examined were (i) provisions that seek to define scope and target; (ii) licensing modalities (including what constitutes ‘best effort’); (iii) preventive obligations (such as filters); (iv) over-blocking (including safeguards and redress mechanisms).
Safeguarding User Freedoms (Statement by European Academics)
A group of 66 academics issued a statement on 12 November 2019 “Safeguarding User Freedoms in Implementing Article 17 of the Copyright in the Digital Single Market Directive“, published in the Journal of Intellectual Property, Information Technology and Electronic Commerce Law (JIPITEC).
There are numerous related academic articles, assessing implementation options for Article 17:
Husovec, Martin and Quintais, João, How to License Article 17? Exploring the Implementation Options for the New EU Rules on Content-Sharing Platforms (October 1, 2019). Available at SSRN: https://ssrn.com/abstract=3463011
Leistner, Matthias, European Copyright Licensing and Infringement Liability Under Art. 17 DSM-Directive Compared to Secondary Liability of Content Platforms in the U.S. – Can We Make the New European System a Global Opportunity Instead of a Local Challenge? (April 8, 2020). 2020 Zeitschrift für Geistiges Eigentum/Intellectual Property Journal (ZGE/IPJ), forthcoming. Available at SSRN: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3572040
European Copyright Society
The European Copyright Society has prepared a series of comments on the implementation of selected articles of the Directive published in the Journal of Intellectual Property, Information Technology and Electronic Commerce Law (JIPITEC 11 (2) 2020).
Article 3, 4: Text and data mining (forthcoming)
Articles 8, 12: Collective management & collective licensing
Article 14: Works of visual art in the public domain
Association Littéraire et Artistique Internationale (ALAI)
Kluwer Copyright Blog Series
Hungarian implementation of art. 5
Dávid Ujhelyi: A third take on the Hungarian implementation of Art 5 of the CDSM Directive (31 August 2020)
Paul Keller: Hungary’s fast tracked implementation of Article 5 CDSM directive in response to the pandemic (23 June 2020)
Peter Mezei: An update on the Hungarian implementation process of the CDSM Directive (22 June 2020)
Article 17 German implementation proposal
Martin Husovec and João Pedro Quintais: Article 17 of the Copyright Directive: Why the German implementation proposal is compatible with EU law – Part 2 (28 August 2020)
Martin Husovec and João Pedro Quintais: Article 17 of the Copyright Directive: Why the German implementation proposal is compatible with EU law – Part 1 (26 August 2020)
Jan Bernd Nordemann and Julian Waiblinger: Art. 17 DSMCD: a class of its own? How to implement Art. 17 into the existing national copyright acts, including a comment on the recent German Discussion Draft – Part 2 (17 July 2020)
Jan Bernd Nordemann and Julian Waiblinger: Art. 17 DSMCD: a class of its own? How to implement Art. 17 into the existing national copyright acts, including a comment on the recent German Discussion Draft – Part 1 (16 July 2020)
Julia Reda: In copyright reform, Germany wants to avoid over-blocking, not rule out upload filters – Part 2 (10 July 2020)
Julia Reda: In copyright reform, Germany wants to avoid over-blocking, not rule out upload filters – Part 1 (9 July 2020)
Dutch implementation proposal
Remy Chavannes: The Dutch DSM copyright transposition bill: safety first (up to a point) – Part 3 (12 June 2020)
Remy Chavannes: The Dutch DSM copyright transposition bill: safety first (up to a point) – Part 2 (11 June 2020)
Remy Chavannes: The Dutch DSM copyright transposition bill: safety first (up to a point) – Part 1 (11 June 2020)
Article 17 implementation guidelines
Christophe Geiger and Bernd Justin Jütte: The Challenge to Article 17 CDSM, an opportunity to establish a future fundamental rights-compliant liability regime for online platforms (11 February 2021)
Paul Keller: Divergence instead of guidance: the Article 17 implementation discussion in 2020 – Part 2 (22 January 2021)
Paul Keller: Divergence instead of guidance: the Article 17 implementation discussion in 2020 – Part 1 (21 January 2021)
Aline Larroyed: Assessing the translations of Article 17 DCDSM: finding the delicate balance and specific context defining the ‘best efforts’ concept (21 December 2020)
Julia Reda: Article 17: What is it really good for? Rewriting the history of the DSM Directive – Part 1 (28 September 2020)
Julia Reda: Article 17: What is it really good for? Rewriting the history of the DSM Directive – Part 2 (29 September 2020)
Article 17 Finnish implementation proposal
Paul Keller: Finnish Article 17 implementation proposal prohibits the use of automated upload filters (23 December 2020)
Article 17 French implementation proposal
Paul Keller: Article 17: (Mis)understanding the intent of the legislator (28 January 2021)
Martin Senftleben and Christina Angelopoulous: The Implementation of Article 17 CDSMD in EU Member States and the Evolution of the Digital Services Act: Why the Ban on General Monitoring Obligations Must Not Be Underestimated (18 November 2020)
Eleonora Rosati: The legal nature of Article 17 of the Copyright DSM Directive, the (lack of) freedom of Member States, and why the German implementation proposal is not compatible with EU law (31 August 2020)
Maxime Lambrecht: Implementations of article 17 of the DSM directive should be Free Speech by Design (22 July 2020)
European Law Blog
Bernd Justin Jütte and Christophe Geiger: Regulating freedom of expression on online platforms? Poland’s action to annul Article 17 of the Directive on Copyright in the Digital Single Market Directive (3 February 2021)
Under Article 17, the European Commission is required to organise a stakeholder dialogue “to discuss best practices for cooperation between online content-sharing service providers and rightholders”.
Article 17(10) says that “[t]he Commission shall, in consultation with online content-sharing service providers, rightholders, users’ organisations and other relevant stakeholders, and taking into account the results of the stakeholder dialogues, issue guidance on the application of this Article […]”. The Commission intends to publish implementation guidance in the first half of 2020.
The first dialogue (covering music, games and software) was dominated by the music sector. It took place on 15 October 2019, and is documented here.
The second dialogue took place on 5 November 2019, with a focus on the audio-visual sector (including sports) and publishing sector (including news). It is documented here.
The third dialogue took place on 25 November 2019. It is documented here. Aims of the dialogue included increasing technical understanding of the operation of content identification systems. Arguably, this should have taken place before the Directive was adopted.
The fourth meeting took place on 16 December 2019. It is documented here.
The fifth dialogue took place on 16 January 2020. The meeting begun what the EC described as “a third phase of the stakeholder dialogue” which is to “focus on the practical application of Article 17”. It is documented here.
The sixth meeting took place on 10 February 2020. It is documented here.
The next meeting, originally scheduled for 30 March 2020, has been postponed.
8 July 2020: Politico reports that the EC plans to circulate art. 17 implementation guidelines for consultation by end-July 2020
27 July 2020: EC publishes a targeted consultation addressed to the participants of stakeholder dialogue. The consultation paper aimed at finalising stakeholder dialogue and presenting EC’s initial ideas on art. 17 guidelines, is open to stakeholders’ written comments till 10 September 2020.
Stakeholders responses to the EC targeted consultation:
IFPI, ACT, CEPI, CEPIC, ECSA, EPC, EUROCINEMA, FEP, FIAD, FIAPF, GESAC, ICMP, IMPALA, IMPF, IVF, Mediapro, MPA, NME, SROC, STM, Telefónica, UNIC: IFPI and 21 organisation from Europe’s cultural and creative sectors raise concerns regardinf the European Commission’s proposed guidance on the application of Article 17 of the DSM Directive (10 September 2020)
CCIA Europe: CCIA Responds to the European Commission Consultaion on Article 17 of the Copyright Directive (10 September 2020)
Communia Association: A step in the right direction: Our response to the targeted consulation on the Article 17 guidance (11 September 2020)
GESAC: Article 17 guidelines: our letter to Thierry Breton (11 September 2020)
EFF: EFF to EU Commission on Article 17: Prioritize Users’ Rights, Let Go of Filters (11 September 2020)
IFJ, EFJ: Journalists’ federations support use of Extended Collective Licensing in new submission on EU Copyright Directive (14 September 2020)
SAA: SAA’s submission to the Copyright Directive’s Article 17 consultation (14 September 2020)
Communia Association, ANSOL, Antigone, ApTI Romania, Article 19, Centrum Cyfrowe, Liberties, Creatvie Commons, D3, Digitale Gesellschaft, Digital Rights Ireland, EFF, Epicenter.works, EDRi, Gesellschaft fur Freiheitsrechte, Hermes Center, Human Rights Without Frontiers, IPI, ICA, IFLA, IuRe, La Quadrature du Net, #noisiamorete, RIS, Wikimedia, XNet, Young Pirates of Europe: Civil Society letter on the Article 17 implementation guidance (14 September 2020)
Liberties: Current Version of Copyright Directive Threatens Human Rights, NGOs Warn (17 September 2020)
BEUC: European Commission’s guidance on application of Article 17 of the Copyright Directive (23 September 2020)
27 October 2020: Politico publishes a non paper from Croatia, Denmark, France, Greece, Italy, Portugal and Spain which notes that the EC consultation paper “exceeds the purpose of the guidelines to be adopted by the Commission and raises very serious issues”.
Critical summaries of the stakeholder dialogues by the Communia Association:
Reports on the stakeholder dialogues by European Digital Rights (EDRi):
20 May 2019: Open Letter: Copyright Working Group Must Include NGO Voices
Open letter to EC calling for the involvement of human rights and digital rights organisations, the knowledge community, free and open source software developers, and communities in all of its efforts around the transposition and implementation of article 17.
Prepared by The Civil Liberties Union for Europe (Liberties), and signed by over 40 users’ and fundamental rights organisations.
14 January 2020: More Transparency Needed During Copyright Debate
Open letter to the EC calling for opening of the draft guidelines to consultation with the participants of the stakeholder dialogues and the broader public.
Prepared by Liberties and signed by over 40 users’ and fundamental rights organisations.
Answer by Roberto Viola (DG CONNECT, Director General), who wrote that participants of the stakeholder dialogue “have my assurance that you will be further consulted before adoption of the guidance”.
20 April 2021: Open letter on Article 17
Open letter to the EC calling for the publication of guidelines and preservation of guidelines’ elements which safeguard users’ fundamental rights.
Prepared by Paul Keller (Communia Association) and signed by 20 other users’ rights organisations who participated in the stakeholder dialogue.
June 2019: European University Association
EU Copyright Directive. EUA issues guidelines for universities
November 2019: EBLIDA, IFLA, LIBER, SPARC Europe
Transposing the Directive on Copyright in the Digital Single Market: A Guide for Libraries and Library Associations
December 2019: Communia Association
Guidelines for the Implementation of the DSM Directive
June 2020: European Composer and Songwriter Alliance
The European Composer and Songwriter Alliance’s 10 steps on how to implement the Copyright Directive for more sustainable music ecosystem
Statements, press releases and blog posts
EFF: Copyright Filters Are On a Collision Course With EU Data Privacy Rules
EFJ: Journalists’ organisations demand fair share in EU Copyright Directive submission
LIBER: Europe’s TDM Exception for Research: Will It Be Undermined By Technical Blocking From Publishers?
SAA: Press release: One year after the EU Copyright Directive
EFF: Article 17 Stakeholder Dialogue: EFF additional comments on privacy concerns and filter test suites
Communia Association: A better way to implement Article 17? New German proposal to avoid overblocking
GESAC: Creating a new Europe: Copyright Directive a year on
EFJ: Celebrating the EU Copyright Reform for a Fairer Digital World
Liberties: Copyright Guidelines Need to Protect Users’ Fundamental Rights
Liberties: Rights Organizations Are Still Pushing to Avoid Mandatory Upload Filters
EPC: Google’s News Showcase Challenges EU Publisher’s Right
Communia Association: DSM Directive implementation update: more proposals to protect users’ rights
AEPO-ARTIS and SAA: Press release: Performers and audiovisual authors call on Member States to entrust CMOs to manage their royalties
EMMA and ENPA: European press publishers celebrate world intellectual property day
SAA: The opportunity with a delayed copyright transposition
Reactions to the adoption of the CDSM Directive
26 March 2019 (day of the final vote in the European Parliament)
CCIA Europe: EU Copyright Directive: A Missed Opportunity for Europe
Communia Association: The new Copyright Directive is a lost opportunity for Europe
DIGITALEUROPE: DIGITALEUROPE press release on the Plenary adoption of Copyright Directive
EDiMA: EDiMA reaction: EU Copyright Directive is not fit for digital age
EDRi: Press Release: Censorship machine takes over EU’s internet
EFF: EU’s Parliament Signs Off on Disastrous Internet Law: What Happens Next?
EuroISPA: EuroISPA regrets plenary vote on EU Copyright Directive
FERA, FSE, SAA: A new EU Copyright law – a long-fought battle won
IFPI: Statement on the European Parliament plenary vote on the Copyright Directive
IFJ, EFJ: IFJ/EFJ hail adoption of Copyright Directive and urge EU Member States to adopt laws that ensure fair and proportionate remuneration for journalists
Liberties: Copyright Directive Passes, But Fight Against Upload Filters Isn’t Over
NME: European Parliament votes to adopt an EU Copyright Directive fit for the 21st century
Open Knowledge Foundation: EU copyright vote a ‘massive blow’ for internet users
OpenMedia: European Copyright Directive passes, setting dangerous precedent for the open Internet
PRS for Music: PRS for Music boss hails Copyright Directive a ‘massive step forward’
W&DW: W&DW celebrates historic vote in Europe for creators
Wikimedia Foundation: European Parliament limits internet freedom in controversial copyright vote
27 March 2019
28 March 2019
29 March 2019
15 April 2019 (final text adopted by the Council)
Authors Group (ECSA, EWC, FERA and FSE): European organisations of authors welcome the final adoption of the Copyright Directive and call on EU Member States to seize this historical opportunity to improve the livelihoods of all authors and foster Europe’s creativity
EDRi: EU Member States give green light for copyright censorship
EMMA, ENPA, NME, EPC: EU Copyright reform adopted by Member States: Publishers call for quick and appropriate implementation into national laws
EVA: EVA welcomes adoption of the Copyright Directive
FEP: Press release: Adoption of the CDSM Directive by the Council
GESAC: A major achievement for Europe: GESAC welcomes the final adoption of the Copyright Directive
Society of Authors: Copyright Directive receives final approval by EU
16 April 2019
IFLA: The EU Copyright Reform: Battles Won, Bullets Dodged, and the Questions that Remain
IGEL: Council lets copyright reform pass – the die is cast
IMPALA: ‘It was a long road’: IMPALA welcomes green light for Copyright Directive
17 April 2019
IFLA, EBLIDA, SPARC Europe, EUA, LIBER: Press Release on the Adoption of the European Directive on Copyright in the Digital Single Market
19 April 2019
Communia Association: DSM directive adopted – implementation in Member States can still make a difference
EU Legal materials
Directive with Recitals grouped by Article
Document courtesy of Professor Alexander Peukert
TITLE I: GENERAL PROVISIONS
TITLE II: MEASURES TO ADOPT EXCEPTIONS AND LIMITATIONS TO THE DIGITAL AND CROSS-BORDER ENVIRONMENT (RECITALS)
Art. 3 – Text and data mining for the purposes of scientific research (recitals)
Art. 4 – Exception or limitation for text and data mining (recitals)
Art. 5 – Use of works and other subject matter in digital and cross-border teaching activities (recitals)
Art. 6 – Preservation of cultural heritage (recitals)
Art. 7 – Common provisions (recitals)
TITLE III: MEASURES TO IMPROVE LICENSING PRACTICES AND ENSURE WIDER ACCESS TO CONTENT
Chapter 1 Out-of-commerce works and other subject matter
Art. 8 – Use of out-of-commerce works and other subject matter by cultural heritage institutions (recitals)
Art. 9 – Cross-border uses (recitals)
Art. 10 – Publicity measures (recitals)
Art. 11 – Stakeholder dialogue (recitals)
Chapter 2 Measures to facilitate collective licensing
Chapter 3 Access to and availability of audiovisual works on video-on-demand platforms
Chapter 4 Works of visual art in the public domain
TITLE IV: MEASURES TO ACHIEVE A WELL-FUNCTIONING MARKETPLACE FOR COPYRIGHT
Chapter 1 Rights in publications
Chapter 2 Certain uses of protected content by online service
Art. 17 – use of protected content by online content-sharing service providers
(recitals para 1)
(recitals para 2)
(recitals para 3)
(recitals para 4 and 5)
(recitals para 6)
(recitals para 7)
(recitals para 8)
(recitals para 9)
(recitals para 10)
Chapter 3 Fair remuneration in exploitation contracts of authors and performers (recitals)
Art. 18 – Principle of appropriate and proportionate remuneration (recitals)
Art. 19 – Transparency obligation (recitals)
Art. 20 – Contract adjustment mechanism (recitals)
Art. 21 – Alternative dispute resolution procedure (recitals)
Art. 22 – Right of revocation (recitals)
Art. 23 – Common provisions (recitals)
TITLE V: FINAL PROVISIONS
Art. 24 – Amendments to Directives 96/9/EC and 2001/29/EC
Art. 25 – Relationship with exceptions and limitations provided for in other directives
Art. 26 – Application in time
Art. 27 – Transitional provision
Art. 28 – Protection of personal data (recitals)
Art. 29 – Transposition (recitals)
Art. 30 – Review
Art. 31 – Entry into force
Art. 32 – Addressees
Earlier CREATe analysis of the evolution of the Copyright Directive Proposal since published by the EU Commission on 14 September 2016 can be found here:
9 Septembe 2019: Question to the Commission by Marcel Kolaja MEP
In the context of the implementation of the Copyright Directive, does the Commission consider that Member States’ obligation to ensure that users can rely on existing copyright exceptions (as provided for by Article 17(7) of Directive (EU) 2019/790) can be fulfilled by a general provision informing users about existing exceptions and limitations in the terms of service of the online content-sharing service provider (OCSSP) whose services are used to host copyrighted content? Or should the implementing legislation require that measures be put in place by OCSSPs to not only ensure that users are informed, but also that they can effectively use these exceptions and limitations without pre-emptive blocking by these OCSSPs?
24 August 2020: Question to the Commission by Alexandr Vondra MEP
Does Article 12 of Directive 2019/790, Article 5 of Directive 2001/29/EC, Directive 2014/26/EU or any other EU law prevent the Member States from establishing either a mandatory collective management of the right of internet search engines to display a press publication in the results of an online search (i.e. not only single words or very short extracts), or a mandatory collective management of the right of press publishers to remuneration for the use and display of the content of a press publication in the results of an online search (i.e. not only single words or very short extracts), without affecting the other aspects of the exclusive right of press publishers to their press publications (this second option should not be understood to mean that the exclusive right is reduced to the right to remuneration)?
Written answer by Mr Breton (9 November 2020): “The Commission considers that Member States are not allowed to implement Article 15 of Directive (EU) 2019/790 on copyright in the digital single market (the ‘DSM Directive’) through a mechanism of mandatory collective management.”
Court of Justice of the European Union
Cases relevant for implementation of art. 15 (press publishers’ right)
VG Media v Google (Case C-299/17)
Request for a preliminary ruling from the Landgericht Berlin in case VG Media v Google LLC
The request made in the context of legal proceedings between VG Media and Google concerning the payment of damages for the use of text excerpts, images and videos in Google’s services pursuant to national press publishers’ right in Germany.
The regional court of Berlin asked the CJEU to consider the enforceability of the German press publishers’ right in light of the requirement to notify the European Commission of any draft technical regulation on services as foreseen in article 8(1) of the Directive 98/34/EC laying down a procedure for the provision of information in the field of technical standards and regulations.
The CJEU found that the German press publishers’ right is a rule specifically aimed at information society services (search engines), and a technical regulation which the EC should have been, but was not, notified of. Following the CJEU judgement, the German press publishers’ right became inapplicable and unenforceable.
Opinion by AG Hogan delivered on 13 December 2018
Judgement delivered on 12 September 2019
VG Media withdraws its claim against Google on 4 June 2020
Cases relevant for implementation of art. 17 (liability of online content-sharing service providers)
Fundamental rights considerations
Poland v European Parliament and Council of the European Union (Case C-401/19)
Action for annulment of Article 17(4)(b) and Article 17(4)(c) of the CDSM Directive brought on 24 May 2019 by Republic of Poland
Poland asked the CJEU to annul parts of article 17 of the CDSM Directive, since they infringe the right to freedom of expression and information guaranteed by Article 11 of the Charter of Fundamental Rights of the European Union. In its submission, Poland noted that by making it necessary for the service providers to carry out prior automatic verification (filtering) of content uploaded online by users, article 17 calls for introduction of preventive control mechanisms, which undermines the essence of the right to freedom of expression and information.
Statement by the Polish Ministry of Culture and National Heritage (in Polish)
Report from 10 November 2020 hearing by Paul Keller: CJEU hearing in the Polish challenge to Article 17: Not even the supporters of the provision agree on how it should work (11 November 2020, Kluwer Copyright Blog)
Summary of 10 November 2020 hearing by Julia Reda: Walking from Luxembourg to Brussels in two hours. The European Court of Justice will rule on the legality of upload filters (16 November 2020, Verfassungsblog)
Delivery of AG opinion scheduled for 22 April 2021.
AG opinion rescheduled to 15 July 2021.
Possible bifurcation of liability regimes under art. 17 CDSM Directive and eCommerce Directive
LF v Google YouTube (Case C-682/18)
Request for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 6 November 2018 in case LF v Google LLC, YouTube Inc., YouTube LLC, Google Germany GmbH.
The request made in the context of legal proceedings between a plaintiff, a music producer and co-owner of a music publishing house, and YouTube, concerning the availability of videos infringing plaintiff’s copyright on the YouTube platform, following their initial removal.
The German Federal Court of Justice (BGH) referred six questions to the CJEU. The first question asks whether the operator of an internet video platform on which videos containing content protected by copyright are made publicly accessible by users without the consent of the rightholders carries out an act of communication within the meaning of Article 3(1) of the InfoSoc Directive. The BGH lists a number of circumstances which it deems important in the context of this question, including the automatic character of the upload and the fact that platform’s operator earns advertising revenue by means of the platform. The second question posed by the BGH, concerns a situation when the first question is answered in negative. The second question asks whether the activity of the operator of an internet video platform under the conditions described in question 1 comes within the scope of Article 14(1) of the eCommerce Directive. The full text of the reference is available here.
The International Literary and Artistic Association (ALAI) opinion (25 February 2019)
Politico reports that delivery of AG opinion was postponed to 15 July 2020.
Opinion by AG Saugmandsgaard Øe delivered on 16 July 2020 (joined cases C-682/18 and C-683/18)
Elsevier Inc. v Cyando (Case C-683/18)
Request for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 6 November 2018 in case Elsevier Inc. v Cyando AG
The request made in the context of legal proceedings between Elsevier, a scientific publisher, and Uploaded, a shared hosting service operated by Cyando. The service provides a storage space for uploading files, which can contain any type of (copyright) content. For each uploaded file, the service creates a link, which the user can share online in so-called link collections. Elsevier seeks an injunction, provision of information, and declaration of liability of Cyando.
The German Federal Court of Justice (BGH) referred six questions to the CJEU. The first question asks whether the operator of a shared hosting service via which files containing content protected by copyright are made publicly accessible by users without the consent of the rightholders carries out an act of communication within the meaning of Article 3(1) of the InfoSoc Directive. The BGH lists a number of circumstances which it deems important in the context of this question, including the automatic character of the upload process, earning of revenues by the service provider and allowing anonymous uploads. The third question posed by the BGH, concerns a situation when the first question is answered in negative. The third question asks whether the activity of the operator of a shared hosting service under the conditions described in question 1 comes within the scope of Article 14(1) of the eCommerce Directive. The fifth question referred by the BGH concerns a situation when both the first and third questions are answered in negative, and asks whether a shared hosting service provider can nevertheless be regarded as an infringer within the meaning of the first sentence of article 11 and article 13 of the Enforcement Directive.
The full text of a reference is available here.
Opinion by AG Saugmandsgaard Øe delivered on 16 July 2020 (joined cases C-682/18 and C-683/18)
Puls 4 TV (C-500/19)
Request for a preliminary ruling from the Oberster Gerichtshof (Austria) lodged on 1 July 2019 in case Puls 4 TV GmbH & Co. KG v YouTube LLC and Google Austria GmbH
The request made in the context of legal proceedings between Puls 4 TV, an operator of an Austrian television broadcaster, and YouTube. Puls 4 TV filed an action for injunction to prohibit YouTube from making available videos containing audiovisual works Puls 4 TV produced, which have been uploaded without authorisation. An injunction was granted by a court of first instance and later dismissed on appeal. The Supreme Court of Austria (Oberster Gerichtshof), considering an appeal on the point of law, referred 4 questions to the CJEU.
The first question asks whether an operator of an online video platform plays an active role and loses the liability privilege provided by art. 14(1) of the eCommerce Directive when it provides or offers to the user accompanying activities in addition to the provision of storage space for third-party content. Accompanying activities include linking the videos uploaded by the user with advertisements (with the user’s consent), suggesting videos, providing user with search function and “help” section. The second question concerns a situation where the host service provider plays an active role as accessory to infringement. The question asks whether it is at the discretion of Member States to provide for claims for a prohibitory injunction also against accessories acting unknowingly or whether Member States must provide for such claims for a prohibitory injunction pursuant to art. 11 of the Enforcement Directive. The third question referred by the Supreme Court of Austria, asks whether the intermediary service provider can benefit from liability privileges provided by arts. 12 to 14 of the eCommerce Directive even if its activity is its own communication to the public within the meaning of Article 3(1) of the InfoSoc Directive. The fourth question asks whether the liability privilege for intermediary service providers in accordance with the eCommerce Directive also exists in respect of claims for a prohibitory injunction (injunction orders issued by the courts).
The full text of a reference is available here.
Liability for communication to the public (art. 3 of the InfoSoc Directive)
Request for a preliminary ruling from the Rechtbank Midden-Nederland (Netherlands) lodged on 5 October 2015 in case Stichting Brein v Jack Frederik Wullems, currently trading under the name Filmspeler
The request made in the context of legal proceedings between Stichting Brein, an anti-piracy organisation, and Mr Wullems, a seller of a multimedia player (filmspeler) with preinstalled open source software and add-ons which include links to websites making works available without the consent of right holders. Stichting Brein brought a legal action seeking an order to stop Mr Wullems from selling multimedia players such as filmspeler, and offering hyperlinks that give users illegal access to protected works.
The District Court, Midden-Nederland (the Rechtbank Midden-Nederland) referred four questions to the CJEU. By its first two questions, in essence, the court asked whether sale of multimedia players, such as filmspeler, amounts to communication to the public within the meaning of art. 3(1) of the InfoSoc Directive, and whether this assessment is influenced by enumerated factors, including users ability to install add-ons and access links on their own.
The CJEU found that sale of multimedia players, such as filmspeler, amounts to communication to the public. In CJEU’s opinion, sale of multimedia players is not a mere provision of phisical facilities for enabling or making communication. Mr Wullems, with full knowledge of the consequences of his conduct, pre-installed add-ons that specifically enable purchasers to have access to protected works published without the consent of the copyright holders of those works. Intervention of Mr Wullems enabled a direct link to be established between websites broadcasting counterfeit works and purchasers of the multimedia player, without which the purchasers would find it difficult to benefit from those protected works, since such websites are not readily identifiable by the public and the majority of them change frequently.
Opinion by AG Sánchez-Bordona delivered on 8 December 2016
Judgement delivered on 26 April 2017
Stichting Brein v Ziggo (C-610/15)
Request for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands) lodged on 18 November 2015 in case Stichting Brein v Ziggo BV and XS4ALL Internet BV
The request made in the context of legal proceedings between Stichting Brein, an anti-piracy organisation, and Ziggo and XS4ALL, internet access providers whose subscribers use the online sharing platform, The Pirate Bay (TPB), an indexer of BitTorrent files. The files shared via TPB relate mainly to copyright-protected works, and are shared without the consent of the right holders. Stichting Brein requested that Ziggo and XS4ALL are ordered to block the domain names and IP addresses of TPB, so that their services cannot be used to infringe copyright and related rights.
The Supreme Court of Netherlands (Hoge Raad der Nederlanden) considering the case on appeal, referred two questions to the CJEU, asking in essence whether TPB amounts to the communication to the public in the meaning of art. 3(1) of the InfoSoc Directive.
The CJEU found that TPB does communicate works to the public. First, the CJEU inferred from this case-law that, as a rule, any act by which a user, with full knowledge of the relevant facts, provides its clients with access to protected works is liable to constitute an ‘act of communication’ for the purposes of Article 3(1) of the InfoSoc Directive. Even though the works are made available by users, not TBP operator itself, in the CJEU’s opinion by making TPB platform available, and managing it, the operator of TPB provides users with access to works, and plays an essential role in making works available to the public. Secondly, the CJEU noted that TPB platform is used by a considerable number of persons, who can access it at any time and simultaneously, which means that TPB communication is aimed at an indeterminate number of potential recipients and involves a large number of persons, the public.
Opinion by AG Szpunar delivered on 8 February 2017
Judgement delivered on 14 July 2017
March 2020: Senate hearings by Subcommittee on Intellectual Property hearings on the topic of updating and modernizing the U.S. Digital Millennium Copyright Act
Second hearing: “Copyright Law in Foreign Jurisdictions: How are other countries handling digital piracy?” (10 March 2020)
Testimonies by Professor Justin Hughes, Professor Pamela Samuelson, Professor Michael D. Smith, Professor Daphne Keller, Mr. Stan McCoy, Ms. Julia Reda, Mr. Jonathan Yunger, Mr. Matt Schruers
May 2020: United States Copyright Office
Section 512 of Title 17: A Report by the Register of Copyrights
Credits This resource has been supported by EU H2020 grant “reCreating Europe: Rethinking digital copyright law for a culturally diverse, accessible, creative Europe” (reference no. 870626) and Kretschmer’s Weizenbaum fellowship at Humboldt University and Wissenschaftszentrum Berlin. Editors: Ula Furgał, Martin Kretschmer, João Pedro Quintais Contributors: Roberto Caso, Giulia Dore, Martin Husovec (roundtable), Peter Mézei, Giulia Priora Design and dissemination: Dietmar Aumann (map), Pete Bennett, Kerry Patterson Suggested citation: EU Copyright Reform: Evidence on the Implementation of the Copyright in Digital Single Market Directive (Directive (EU) 2019/790) CREATe Centre: University of Glasgow & reCreating Europe https://www.create.ac.uk/cdsm-implementation-resource-page/ Please include the date when the resource was accessed.