5 Critical Issues with the National Implementations of Article 17 EU DCDSM
Introduction
In 2022 and 2023, Dr. Christina Angelopoulos, Associate Professor in Intellectual Property Law at the University of Cambridge, conducted research, including a detailed report for the Coalition for Creativity (C4C). The expert reports she collected and analysed have unveiled significant inconsistencies in the national implementations of Article 17 of the Directive on Copyright in the Digital Single Market (DCDSM) across the EU, which reshapes the liability frameworks for online content-sharing service providers (OCSSPs). This LinkedIn article gives an overview of five crucial shortcomings that undermine the Directive’s harmonisation objective.
Video capsules explaining these issues can be found here.
Dr. Angelopoulos’ legal analysis is available on the Kluwer Copyright Blog here.
1. Overextension of Related Rights
With regard to Article 17, one issue that arose concerns the extent to which it pulls in related rights. While Article 17 intended to specify certain related rights requiring OCSSPs to obtain authorizations from right holders, discrepancies emerge across the Member States as to the scope of the covered rights. Countries like Belgium and the Netherlands strictly adhered to the Directive’s designated rights. In contrast, member states such as Austria and France adopted broader interpretations, encompassing all related rights recognized under their national laws. This wide-ranging approach, exemplified also by Denmark’s inclusion of rights in catalogues and Sweden’s extension to non-original photographs, introduces a potential over-compliance issue, risking conflict with EU copyright norms.
2. Mistranslations Leading to Legal Discrepancies
Linguistic errors in the translation of the Directive have led to substantial variations in national laws. For instance, the Slovakian interpretation of Article 17(2) sets a higher threshold for user protection by making conditions for exemption cumulative rather than alternative. Similarly, Finland’s adaptation of the requirements for OCSSPs introduces stricter liability standards, deviating from the Directive’s intentions and complicating compliance.
Finally, there has been significant attention on how some EU Member States have translated the term “best efforts” from Article 17(4) of the Directive. Countries like Austria, Cyprus, Greece, Italy, Latvia, and Spain have interpreted this as demanding a higher level of effort, using phrases like “every effort” and “greatest efforts.” Conversely, Sweden has adopted a more lenient standard, only requiring actions that are “reasonably required.” While Sweden’s approach might align with the Directive’s call for proportionality, increasing the demands beyond “best efforts” does not.
3. Misinterpretations Regarding Piracy and Competition
An intriguing finding from this study as regards Article 17 revealed that national legislators might have been inadvertently led to flawed implementations due to ambiguities originally present in the Directive.
Indeed, several Member States, including Austria, Croatia, Finland, France, Germany, Greece, Malta, Romania, Slovakia and Sweden, incorporated additional criteria that OCSSPs must meet to avoid liability, inspired by the non-binding language of the Directive’s recitals. These include the statement that Article 17(4)’s immunity mechanism does not apply to providers whose (main) purpose is to engage in or to facilitate piracy, as well as in some cases the requirement that OCSSPs play a significant role in the market by competing with other online content services. Such interpretations, while intended to clarify roles within the digital market, instead muddy the waters of legal compliance, as they are not explicitly stipulated in the operational parts of the Directive.
4. Ireland’s Handling of the Reproduction Right
Ireland’s implementation of Article 17 presents a unique challenge regarding the reproduction rights of copyright holders. The Irish law requires online content-sharing service providers (OCSSPs) to obtain authorization not only for making works available to the public but also for reproducing them. This interpretation could potentially lead to issues since the holders of reproduction rights and public communication rights might not always align. Moreover, the guidance from the European Commission suggests that reproductions necessary for communication should not require separate authorizations, yet this guidance is non-binding, leaving ambiguity in the enforcement and compliance within Ireland.
5. Spain’s Approach to Unjust Enrichment
Spain introduced a controversial provision that allows right holders to claim compensation for unjust enrichment, even when OCSSPs fulfil the conditions of Article 17(4). This provision directly challenges the Directive’s intent to harmonise the liability framework across the EU, potentially undermining the Directive’s effectiveness by allowing claims that circumvent established liability protections.
Conclusion
The varied implementation of Article 17 across the EU underscores the challenges in harmonising digital rights management. These inconsistencies not only affect the liability of OCSSPs but also impact the rights of content creators and users across the digital single market. It is crucial for the European Commission to ask Member States to refine their laws, ensuring alignment with both the letter and the spirit of the Directive to foster a balanced and equitable digital environment.
Written by Caroline De Cock, LL.M. , Head of Research.
September 18, 2024