New studies published on changes to intermediary liability proposed by Copyright Directive

10 October 2018

A new study on intermediary liability has been published by Maria Lilla Montagnani and Alina Yordanova Trapova, entitled ‘Safe harbours in deep waters: a new emerging liability regime for Internet intermediaries in the Digital Single Market’ (available here). The study considers the changes in intermediary liability from existing safe harbour provisions per the E-Commerce Directive (‘conditional’ liability) to the new provisions of article 13 of the Copyright Directive (‘organisational’ liability). The authors conclude that the new provisions have the capacity to cause uncertainty for internet platforms as increasingly they move to a ‘cyber-police’ role (or something “very much like a general monitoring duty”). Furthermore, the study suggests that due consideration has not been given to fundamental rights of internet users, particularly the right of freedom of expression, of which the Directive should express a duty to balance.

Earlier in 2018, two further studies similarly concluded that article 13 is likely to have detrimental effects, should it be implemented.

First, Felipe Romero-Moreno in “‘Notice and staydown’ and social media: amending Article 13 of the Proposed Directive on Copyright” (available here) concludes that (as drafted) article 13 constitutes an infringement of the rights of both platforms and users under the ECHR (specifically articles 6, 8 and 10). They recommend several amendments to the text of the article, including: a requirement for independent review of the takedown systems; an obligation on Member States to authorise and audit said systems, and; an assessment of the compatibility of these technical measures with articles 8 and 10 of the ECHR.

The second study, by Giuseppe Colangelo and Mariateresa Maggiolino entitled “ISPs’ copyright liability in the EU digital single market strategy” (available here) concludes that there is no empirical evidence to support the new liability framework as proposed by the Copyright Directive. In particular, they note that there is no evidence of displacement of sales, or the so-called “value gap”, which they note is mostly advanced by the music industry. Instead, Colangelo and Maggiolino point to studies which confirm that the artists have instead benefitted from the introduction of streaming platforms. As such, they call for a “methodological path” to support the introduction of the new liability regime for internet platforms (which at present, they find lacking).