Harmonising Intermediary Liability
IViR, 14 January 2017
Proposed New
Legislation
Prof. Dr. Martin Senftleben
Vrije Universiteit Amsterdam
Bird & Bird, The Hague
Towards a Modern, More European ©
• interdependence of diverse creative content
and innovative online services
‘Both — creative content and online services —
are important for growth and jobs and the success
of the internet economy.’ (p. 9)
• but: risk of a value gap
‘There is, however, growing concern about whether
the current EU copyright rules make sure that the
value generated by some of the new forms of
online content distribution is fairly shared…’ (p. 9)
Value gap
Content platforms
Towards a Modern, More European ©
• safe harbour for hosting as a backdoor to
obtain website contents?
‘This has prompted a growing debate on the scope of
this exemption and its application to the fast-evolving
roles and activities of new players, and on whether
these go beyond simple hosting or mere conduit of
content.’ (p. 10)
• same point in ‘Online Platforms Opportunities
and Challenges’ (May 2016), p. 8
Purpose of the Study
• changes to current EU legislation
‘enabling the effective enforcement of copyright
and related rights in the digital environment,
particularly on platforms which disseminate
protected content.’ (p. 2)
• strategy: leaving general rules of the ECommerce Directive untouched
• instead: neutralization of the safe harbour
for hosting in copyright legislation
Proposed New Legislation
Art. 13(1) Proposed DSM Directive
‘Information society service providers that store and
provide to the public access to large amounts of
works or other subject-matter uploaded by their users
shall, in cooperation with rightholders,
take measures to ensure the functioning of
agreements concluded with rightholders for the use of
their works or other subject-matter or to prevent the
availability...’
• obligation to enter into agreements?
• or simply pacta sunt servanda?
Recital 38 Proposed DSM Directive
‘In respect of Article 14 [E-Commerce Directive],
it is necessary to verify whether the service
provider plays an active role, including by
optimising the presentation of the uploaded
works or subject-matter or promoting them,
irrespective of the nature of the means used
therefor.’
• limiting the scope of the safe harbour?
• small players disadvantaged?
Art. 13(1) Proposed DSM Directive
‘Those measures, such as the use of effective
content recognition technologies, shall be
appropriate and proportionate.
The service providers shall provide rightholders
with adequate information on the functioning and
the deployment of the measures…’
• fundamental rights governing private
relationships?
• but: reporting obligation only with regard to
rightholders
Content recognition technologies
Public interest duly represented?
Art. 13(2) Proposed DSM Directive
‘Member States shall ensure that the service
providers referred to in paragraph 1 put in place
complaints and redress mechanisms that are
available to users in case of disputes over the
application of the measures referred to in
paragraph 1.’
• CJEU, UPC Telekabel Wien, para. 57
• ‘...put in place...’ sufficient?
• EU legislator careless?
The end. Thank you!
contact: [email protected]