ABBREVIATIONS
CJEU Court of Justice of the European Union
DM Digital Market
DSM Digital Single Market
DSM Directive Directive (EU) 2019/790 of the European Parliament and of the Council of 17 April 2019 on copyright and related rights in the Digital Single Market
EC European Commission
EEA European Economic Area
EU European Union
EU Charter Charter of Fundamental Rights of the European Union 2012
InfoSoc Directive Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society
IP Intellectual Property
ISP Information Society Service Provider
OCSS Online Content-Sharing Service
TFEU Treaty on the Functioning of the European Union
TRIPS Agreement on Trade-Related Aspects of Intellectual Property Rights 1994
US United States
WTO World Trade Organization
- Introduction
- Background
Digitalization is currently gaining wide scope not only in the EU but also throughout the world. The main reason for this, in addition to improving technology, is also the COVID-19 pandemic period, which played an integral role in the faster transition to digitalization. This process is also widely reflected in the field of copyright law. The digitalization of copyrighted works including text, music and video has dramatically increased the efficiency of unauthorized copying. It becomes easier to copy and share digital information, to copy and paste from a web page, to share files.[1] Subsequently, governmental bodies focused on the effective regulation of copyright law in the digital market (DM). The gradual advancement in digitalization and the empowerment of less expensive and affordable use of copyrighted objects have led to the adoption of the Directive 2019/790 of the European Parliament and of the Council of 17 April 2019 on copyright and related rights in the Digital Single Market (DSM Directive), which is the most striking precedent in the field of digital copyright law.
With the gradual transition of these legal relations to a still poorly studied digital single market (DSM), the regulation of copyright law in DM and the identification of facts of copyright infringement become more complicated. To alleviate the current situation, the concept of copyright infringement, methods of infringement and its legislative and practical consequences within the framework of European Union (EU) law, as well as a brief analysis of the Court of Justice of the European Union’s (CJEU) decisions are considered. The concept and methods of copyright infringement give rise to consideration of copyright holders’ rights under the DSM Directive. Copyright has a rather deep history of origin and formation, therefore, consideration of all rights under copyright is not the focus in this thesis, but only the rights that are specifically protected and used with the transition to the DM. It is especially important to note Articles 15 and 17 of the DSM Directive, which have been criticized for the primary provisions. This attitude towards an entirely new piece of legislation undermined the credibility of its implementation by the EU Member States. This harsh criticism led to certain changes.
It is also worth exploring current challenges and a new approach to the copyright law in DM, specifically balancing the freedom of expression and copyright law, as well as the effect of the COVID-19 pandemic on digital copyright law.
- Purpose and Aim of the Essay
The purpose of this paper is to research copyright law infringement and protection of rights of copyright holders in DM under DSM Directive. It is aimed at analysing the concept of copyright infringement in DM, CJEU’s assessment of copyright infringements in DM under EU law and whether the rights of copyright owners in DM are protected properly. The ambition for this research is settled narrowly in the fact of increasing digitalisation in the field of copyright law, specifically copyrighted works in social media, and current challenges in the regulation of DSM within the EU.
The following research questions will be answered in order to achieve the purpose of this paper:
- How is the copyright law regulated in DM?
- What is copyright infringement in DM?
- What are the methods of copyright infringement in DM?
- What is the role of individual users and intermediaries in copyright infringement in DM?
- What are the most criticized provisions of the DSM Directive? Why?
- How is the freedom of expression and COVID-19 pandemic counted as emerging challenges of digital copyright law?
- Delimitations
Since the topic is broad and can cover different fields of law, the following delimitations have to be made.
The main focus of this work is EU copyright law which can be eventually narrowed down on focusing on copyright infringement, rights of copyright holders and protection measures. As copyright law is a quite broad and well-researched field of law, the work is limited to the extent of the DM within the EU. Moreover, rights under copyright law will be concerned only in regards to the DM, and a limited number of rights will be discussed. This thesis will not broadly analyse the rights of copyright holders other than that can be concerned in DM.
This thesis will not go into detail about the DSM and will limit with a general overview of it in order to make clear what the concept of DSM is.
- Methodology and Material
There are several research methods used in this thesis, one of which is descriptive research. Descriptive research, as its name suggests, describes the state of affairs as it exists at present and it merely describes the phenomenon or situation under study and its characteristics.[2] The analysis of copyright infringement concept, DSM concept and protection of rights of copyright owners have been concerned via this type of methodology.
The second method is applied research or action research, which aims at discussing and finding a solution for an immediate problem. This method involves rising problematic issues and immediate ways of their solution. The applied research method can be seen in chapters 4 and 5 of this paper in regard to practical challenges under digital copyright law.
The third legal research method applied in this paper is comparative research and the EU-legal method[3]. This type of research crosses traditional categories of law, integrating public and private international law with domestic law, European law and the comparative method. [4] Moreover, the EU law, Regulations and Directives have an indispensable role in formulating the analysis of copyright law in DM. This method also considers practical and case law approach to the analysis, where previous cases of CJEU and other courts are referred to make a deep comparison within the applied field of law.
Both sources of EU law, primary and secondary sources, are included in the used material of this thesis. Primary sources in this thesis include the EU legislation, as well as legal instruments concerning Copyright Law in the EU legal system, the case law of CJEU.
Secondary sources in this thesis include books, academic articles, Advocate General’s opinions, doctrinal works, legal blog sources and commentaries on the applied field in this thesis.
1.5. Outline
This thesis consists of six chapters.
In the introductory chapter, the problem, overview and methodology of the thesis research are addressed.
The second chapter named Copyright law and Digitalization refers to the understanding of concepts of copyright law, copyright infringement and DSM under EU law. The chapter also refers to the DSM Directive and explains the role of this Directive in the regulation of copyright law in DM.
The third chapter introduces the analysis of copyright infringement in DM which is concerned with the theoretical and practical approaches. This chapter provides an in-depth analysis of copyright infringement with its methods, latest examples and case law, as well as takes individual infringers and intermediaries as subjects of copyright infringement.
The fourth chapter focuses on the DSM Directive and its role in the protection of copyrighted works. It also discusses Articles 15 and 17 of this Directive and defines their role in the protection of the rights of copyright holders.
The fifth chapter focuses on current challenges in copyright law in the digital world. This chapter considers the balance between freedom of expression and copyright, as well as the effect of the COVID-19 pandemic as important challenges.
Finally, the concluding chapter makes an overall review of the analysis in this thesis and also refers to possible solutions to rising questions.
- Copyright Law and Digitalization
2.1. EU Copyright law and legislation
Intellectual Property (IP) law covers four main areas as Trademark, Copyright, Patent and Design. Copyright law has a fairly deep history of origin and formation. Copyright law protects the intellectual rights of the author or other copyright owner in original literary, scientific and artistic works such as poems, books, films, music, songs or sculptures. Copyright is therefore a form of property; indeed, it grants the copyright owner some exclusive rights, i.e. rights to exclude others from his/her property. Under Article 17.2 of the EU Charter, like other forms of property, IP is recognized as a fundamental right and as such, it benefits from special legal protection.[5]
Moreover, those exclusive rights as economic rights and moral rights are deeply involved in the concept of copyright protection. Economic rights guarantee control over the work and remuneration for its use through selling or licensing. Moral rights usually protect rights to claim authorship (right of attribution) and to refuse a modification of the work (right of integrity).[6]
General consideration of the concept of copyright law makes it possible to transfer the overview of copyright legislation in the EU. Copyright is subject to rapid changes both from a theoreticalç practical and, thus, legislative point of view. Copyright law has the Berne Convention for the Protection of Literary and Artistic works 1886, Agreement on Trade-Related Aspects of Intellectual Property Rights 1994 (TRIPS Agreement) as its main international source.
The Berne Convention, which was signed in1886, was the first major international treaty to define the concept of national treatment. Following, the two the WIPO Copyright Treaty 1996 and the WIPO Performances and Phonograms Treaty 1996, all of which dealt with copyright, related rights and new technology, provided a new legislative impetus to attempts in Europe to adapt and harmonize copyright law to the challenges of the information society.[7] Finally, Article 3.1 of the TRIPS Agreement sets minimum requirements for national governments to regulate various aspects of IP as they apply to nationals of other WTO member countries.
It has only been since the 1990s that copyright has received some attention from EC. This was primarily reflected in the consistent adoption of the Computer Programs Directive 91/250/EEC (1991), Rental and Lending Directive 92/100/EEC (1992), Satellite and Broadcasting Directive 93/83/EEC (1993), Term of Protection Directive 93/98/EEC (1993), Database Directive 96/9/EC (1996) and E-Commerce Directive 2000/31/EC (2000). Over time, digitalization and technological improvements have called for a change and deeper focus on copyright law. As a result, Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (InfoSoc Directive) established new terms and provisions about the private-copying exemption and technical security mechanisms, effectively allowing copyright holders to contractually and technologically restrict the use of copyright exceptions.[8]
The most recent legal act enacted covering copyright law in the transformation to the digital era is DSM Directive. The DSM Directive establishes rules aimed at further harmonising EU law on copyright and related rights in the internal market, considering, in particular, digital and cross-border uses of protected content. It further establishes guidelines for copyright and related rights limitations and exceptions, license facilitation, and other rules aimed at ensuring a well-functioning marketplace for the exploitation of works and other subject matter.[9]
Overall, despite the deep history of formation, legislation in the field of copyright law in connection with the transition to digitalisation and constant novelty in the field of technology still does not have a firmly established character and leaves it still unregulated areas within the framework of copyright law.
2.2. The concept of copyright infringement
Copyright infringement is an infringement of intellectual property rights. The use of copyright-protected content without the consent of the copyright holder is known as copyright infringement. Copyright infringement occurs where a third party infringes on the copyright holder’s rights, such as the exclusive use of a work for a fixed period of time.[10]
The most common forms of copyright infringement are the use of texts and photographs without the consent of the copyright holder or even without citing the copyright holder.[11] Social media is the most prominent example of this type of infringement, where almost every social media user shares text, photos or videos without specifying the owners of those intellectual property rights. The most common area of copyright infringement is music and films, where sounds, fragments and other objects of copyright are regularly used that violate the rights of the owner.[12] Examples of copyright infringement include music download sites, where most of the files are pirated and even dangerous to download.
Copyright infringement can be regarded as intentional action when the infringer purposefully uses the protected product without the permission of the owner. If the party does not know about the copyright infringement or could not know about such an infringement, the infringer’s liability is excluded, however, the infringer may be obliged to pay compensation for the illegal use of copyright. It should be noted that copying, using or distributing files is not always an infringement of copyright, therefore there are exceptions to infringement of objects of intellectual property. Such exceptions which are not limited with this list may be (a) expiration of the copyright protection period which subsequently acquires the right to public use; (b) fair use, which is not aimed at violating the rights of the owner, but at a brief overview as a commentary or criticism of the copyrighted work; (c) licensing on the basis of an agreement between the parties, according to which the licensor grants the right to use the copyrighted work on the part of the licensee. In this case, the parties themselves have the right to determine in detail the conditions of use, transfer and ownership.
Copyright law is violated for various reasons, but the most significant is the lack of desire to spend and the rather high prices set by the copyright holder to acquire the product, as well as the assumption of avoiding liability. For this reason, today many international and local companies within the EU support the need for copyright registration. In the EU, the protection period is limited to 70 years from the death of the copyright holder which in the future leads to deeper problems in the ownership and use of the copyright.[13]
2.3. Overview of Digital Single Market concept
A DM is an economic term that refers to a market where products are bought and sold using digital platforms.[14] The Internet can be regarded as the main digital tool.
By adopting the DSM Strategy in 2015, the European Commission aimed to develop EU-based relations and create a single market in the digital world. The Strategy envisages strengthening the market through the transition to a digital economy, and also contains at its core the same free movement of goods, services, people and capital, as in the concept of the Single Market. In general, the strategy is based on three main objectives or so-called pillars, which can be referred as Access, Environment and Digital Economy.[15]
Access means the ability of all individuals and companies within the EU to freely carry out the online sale of goods and services, as well as other activities covering the concept of a Single Market within the EU.[16]
The Environment provides for the creation of an appropriate environment for activities, which is reflected in the improvement of the digital community, including the legal framework.[17]
The Digital Economy is about making a profit from online activities and focusing on economic sustainability and development. The digital economy also determines tax issues within the DM.[18]
The legislative process for the development of the DSM has already been completed. At the moment, digitalisation is a priority in terms of practical application. However, due to the novelty of such a system, there is distrust in the implementation of online activities, as the number of online purchase and sale fraud has increased in recent years. Such an outcome of events quite strongly denigrates the current position of the DSM, but at the same time affects its improvement. Despite the presence of certain shortcomings in the DM, this system made a big leap towards the development of the foundations and principles of the Single Market and the EU.
- Copyright infringement in the digital market
3.1. Analysis of copyright infringement in the digital market
The concept of copyright infringement was outlined above which covers a general presentation of the concept from a theoretical point of view. Copyright infringement has become simpler in the internet age, except when done on a wide scale — consider unlicensed large-scale file-sharing on peer-to-peer or torrent pages. It makes no difference what technology was used to retrieve copyright-protected works, or whether the material was downloaded in its entirety or in sections.[19]
One of the most striking examples of copyright infringement is downloading work from the Internet. Moreover, this download provides for a copy of hundreds of thousands of users who download this file in the same way. In this case, the question arises as to whether such a download of a large-scale nature is a clear example of copyright infringement. In this regard, there is no single answer to this question in the framework of EU practice, but it is possible to consider the case law of CJEU attaching great importance to exceptions to copyright infringement. In accordance with paragraph 70 of the Stichting Brein case, the CJEU stated that “temporary acts of reproduction on a multimedia player of copyright-protected works obtained from streaming websites belonging to third parties offering those works without the consent of the copyright holders are such as to adversely affect the normal exploitation of those works and causes unreasonable prejudice to the legitimate interests of the right holder because that practice would usually result in a diminution of lawful transactions relating to the protected works, which would cause unreasonable prejudice to copyright holders”.[20] Thus, the CJEU held that the acts of streaming by end-users of that kind of player are not covered by copyright exceptions.[21]
The adoption by the EC of a number of legal acts to regulate copyright and establish a framework for copyright infringement in the digital market has made it possible to identify various shortcomings in the field of digital copyright law. However, it is necessary to analyse the issue of copyright infringement both before and after the adoption of the DSM Directive. In doing so, it is necessary to consider two frameworks for analysing copyright infringement: firstly, the legal position of individual infringers and, secondly, the legal position of the intermediaries whose services such infringers use.[22]
3.1.1. Individual infringers
Individual infringers are the most common players of copyright infringement activities. The reason for this is the daily activities of various people on the Internet that involves a diverse array of acts, including browsing, downloading, streaming, stream-ripping, uploading, and hyperlinking.[23] In this case, the question of studying the exclusive rights of reproduction and communication is raised, which were also deeply studied in the framework of the EU case law. Following CJEU rulings, the right to reproduction now extends to end-user’s internet use, exploitation, and redistribution of material, as these practices necessitate the development of digital copies.[24]
In the Infopaq case, the CJEU has taken the position that the part of the work used by the individual user, which is in the composition of the work reflecting the own intellectual creation of the author of this right, is considered reproductive.[25] In this case, the originality of the work of an individual user plays an important role, which is the main criterion for assessing copyright infringed by an individual user.
The CJEU in its case law stated that the concept of ‘communication to the public’ includes two cumulative criteria, namely, an ‘act of communication’ of a work and the communication of that work to a ‘public’.[26] ‘Act of communication’ concept refers to any transmission of the protected works, irrespective of the technical means or process used.[27] Moreover, every transmission or retransmission of a work that uses a specific technical means must, as a rule, be individually authorised by the author of the work.[28] The concept of the ‘public’ refers to an indeterminate number of potential viewers and implies, moreover, a fairly large number of people.[29] Communication on the Internet and by the same technical means must be directed at a new public, that is to say, at a public that was not taken into account by the copyright holders when they authorised the initial communication to the public.[30] The CJEU has, moreover, specified in its case law that the concept of ‘communication to the public’ requires an individual assessment.[31]
These basic criteria for recognizing copyright infringements lead to conclusions about the difficulty of identifying the individual infringers concerned. Finally, even though a large percentage of internet infringements by persons are unenforceable, the extension of exclusivity in the online world fails to provide sufficient remuneration to right-holders for the use of works and, as a result, an adequate standard of protection: right-holders may be shielded in principle, but only in theory.[32]
3.1.2. Intermediaries
In contrast to individual users, intermediaries are important regulators of relations in the digital market, while using their own technical devices and providing services in order to provide access to the Internet and disseminate good content within the online network. Despite the fact that the concept of intermediary as a whole has been widely used since the adoption of the E-Commerce Directive, it is not clearly conceptualised in the EU legislation. At the same time, the CJEU has repeatedly noted and established the concept of an intermediary in case law. Examples include paragraph 112 in the Google France[33] and paragraph 111 of the L’Oréal and Others[34] cases. Thus, it is necessary to take into account the infringement of copyright on the part of the intermediary service providers and their liability for such infringement.
Carrying out their activities, intermediaries can violate the copyright law by transferring to third parties unprotected or violating someone’s copyright objects in the digital market, also, on the contrary, third parties can use violating the rights of the copyright holder. Rightsholders may still apply for an injunction against an intermediary whose services are being used to infringe on IPR, such as copyright, by a third party. The CJEU has provided guidelines on the requirements for determining damages in cases of presumed online copyright and related rights infringements.[35] The recital 59 of the InfoSoc Directive states that “in the digital environment, in particular, the services of intermediaries may increasingly be used by third parties for infringing activities. In many cases, such intermediaries are best placed to bring such infringing activities to an end…”.[36]
3.2. Methods of digital copyright infringement
There is a different approach to the classification of methods of copyright infringement both in US law and within the framework of EU law. This thesis provides for the classification of four methods of copyright infringement in the DM, which are streaming, downloading, stream-ripping, and torrent.
3.2.1. Streaming
Streaming within the DM is the distribution or use of a copyright object in various web sources by multiple users and covering any sites that primarily enable unlawful content to be accessed via internet streaming directly from a user’s web browser.[37] At the same time, films, music, and other audio and video files are most often used as objects of streaming.
The CJEU considered the stream issue in the ITV v. TVCatchup Ltd case, where it found that live television channels streaming is a ‘communication to the public’ within the meaning of the InfoSoc Directive.[38] It stated in paragraph 26 that given that the making of works available through the retransmission of a terrestrial television broadcast over the internet uses a specific technical means different from that of the original communication, that retransmission must be considered to be a ‘communication’ within the meaning of Article 3(1) of InfoSoc Directive.[39]
3.2.2. Stream ripping
Obtaining a persistent copy of content that is streaming online is known as stream-ripping. The procedure may be used for both audio and video materials.[40] In VCAST Limited v RTI SpA case, the CJEU contemplated stream-ripping and decided that without the right holder’s consent, a commercial undertaking to provide private individuals with a cloud service for the remote recording of private copies of works protected by copyright, by means of a computer system, by actively involving itself in the recording could undermine the rights of that right holder.[41]
3.2.3. Torrent
Torrent considers that a visitor to a torrent download portal may search for any material and then download a tiny file that starts the process of downloading the entire product.[42]
In Stichting Brein v Ziggo case, the Pirate Bay is a file indexer that indexes ‘BitTorrent’ files. Users must first download a piece of software called a “BitTorrent Client” (which is not affiliated with The Pirate Bay) that allows them to create BitTorrent files, which may then be posted to internet sharing sites like The Pirate Bay.[43] The CJEU stressed that the Pirate Bay indexes torrent files in such a way that the works may be easily located and downloaded and classifies the works under different categories.[44] Thus, the CJEU concluded that the concept of ‘communication to the public’ in this case must be interpreted as covering the making available and management, on the internet, of a sharing platform that allows users of that platform to locate those works and to share them in the context of a peer-to-peer network.[45]
3.2.4. Downloading
Downloading involves the purchase of files by users of the DM for personal use without any consent from copyright owners.
Until 2003, Dutch legislation provided for the possibility of illegal downloading, while the user was obliged to pay a certain amount as a levy, which was subsequently distributed among the copyright owners. Regardless of the Dutch government’s defence, the CJEU in ACI Adam BV v. Stichting de Thuiskopie case concluded that there are no legal reasons for the Dutch government to tolerate downloads from illegal sources and stated that a private copying levy system, which does not, as regards the calculation of the fair compensation payable to its recipients, distinguish between the lawful or unlawful nature of the source from which a private reproduction has been made, does not respect that fair balance, which is maintained between the rights and interests of authors and those of users of protected subject matter.[46]
- Digital Single Market Directive and its role in the protection of copyrighted works
4.1. DSM Directive as a new instrument for the protection of copyright holders
Over the past decade, DM and technology have made a big leap forward. This development gave rise to the need to take measures to regulate the activities and protect the rights of copyright holders. Such a measure was the adoption of the DSM Directive, which replaced the outdated provisions with the current realities of copyright law in the framework of the DM. At the moment, the DSM Directive is an important tool in protecting the rights of copyright holders and in covering copyright-related activities in the DM. The directive has clearly defined objectives, which are to improve protection for copyright holders by creating instruments to monetise their work used by information society service providers (ISPs) and to consequently stimulate the creative industry.[47]
According to the provisions of the DSM Directive, June 7, 2021, was set as the deadline for the implementation of the provisions of the Directive in the legislation of the 27 EU Member States. The Directive has been heavily criticized for its limitations and exclusions within online platforms, as well as for violations of the freedom of expression. However, it should be noted that actions that infringe or have the consequences of infringing the rights of the copyright owner should be limited or in relation to such actions should be established appropriate rules. The Directive is instrumental in delineating the right of expression and the rights of copyright holders by balancing the two, and also the balance is established in any area of public policy such as education, research and innovation.
While noting criticism in relation to the DSM Directive, particular attention should be paid to Articles 15 and 17 of this Directive, which served as the basis for such criticism.
4.2. Article 15 and Article 17 of the DSM Directive
This paragraph examines the general content of Articles 15 and 17 of the DSM Directive, their role in protecting the rights of copyright holders, the maintained balance, and the issues of limitations and exceptions under these Articles that have serious implications for companies in DSM.
4.2.1. Article 15 of the DSM Directive
The regulation of the protection of press publications concerning online uses has become an important aspect in recent years, which was eventually covered by this Directive. With the development of the DM, there have been major changes in the news feed from press publications, which have already begun to focus on social media or various platforms. With the help of these platforms, press publications could expand the market by negotiating with new platforms, users could save their time by acquiring the necessary information through a single online platform, and have an access to more news or articles. However, these platforms by creating single access to news and articles exposed their activities to infringement of the copyright of press publications. Thus, these platforms, ISPs often share snippets of news stories through which they attract viewership and ad revenue, but over which they fail to give credit to the press publishers who originally provided the news.[48] These platforms include Google, Facebook and other large Big Tech companies. This attitude had a serious impact on the violation of the rights of press publications and also limited their ability to profit from their own labour.
Article 15 of the Directive covers the protection of press publications concerning online uses. Article 15(1) of the DSM Directive says that the Member States shall provide publishers of press publications established in a Member State with the rights provided for in Article 2 and Article 3(2) of the InfoSoc Directive for the online use of their press publications by information society service providers.[49]
Article 2 and Article 3 provides for the exclusive right to authorize or prohibit direct or indirect, temporary or permanent reproduction and the right of communication to the public of works and right of making available to the public other subject matter accordingly. Therefore, authors of press publications obtained reproduction rights and rights of communication.
In accordance with Article 15(5) of the DSM Directive, Member States must ensure that authors of works integrated with a press publication get a fair share of the revenue generated by the usage of their press publications by information society service providers.[50] Moreover, Article 15(4) of the DSM Directive defines the expiration period of the rights provided in this Article as two years after publishing the press publication.[51]
The original text of the Article was heavily criticized for the use of ambiguous concepts and the established hyperlink tax without any agreed-upon mechanisms of action. It should be noted that acts of hyperlinking are expressly exempt from the new Directive’s scope, implying that any user will be allowed to connect to any website, including online publications.[52] The earlier used notions of “individual words and very short extracts” (or publicly called as “snippets”) were excluded from the context of the latest version of the Directive due to ambiguity and the imposition of an additional obligation on authorization, that is, press publications can be used without any authorization and for free.[53] In addition, the article excludes the possibility of applying the provisions in relation to individuals and non-profit organizations, which was different from the original version of the Directive proposal.
A fair share of the revenues of authors of press publications is a priority for the EU, both within the framework of the DSM Directive and in all other areas of activity. A fair share of the revenues is based on proportionality and transparency principles. Thus, the most recent version of the Directive provides for an exclusively updated nature and does not include controversial provisions.
4.2.2. Article 17 of the DSM Directive
Article 17 of the DSM Directive covers the use of protected content by online content-sharing service (OCSS) providers. According to Article 17 (1) of the DSM Directive, when an OCSS provider allows the public access to copyright-protected works or other protected subject-matter uploaded by its users, Member States must establish that it is performing an act of communication to the public or an act of making available to the public.[54] This article plays an important role in balancing the protection of rights of copyright owners by restricting access to various online platforms without the license required for such access. In this case, the responsibility for infringing the rights of copyright owners lies with platforms, which undertake to regulate the actions of users within the framework of the established rules.
Content-sharing sites such as YouTube and Vimeo can be sued under Article 17 of the DSM Directive for making copyright-infringing content publicly available, even if it was posted by its users.[55]
Thus, the main goal in establishing such strict restrictions in relation to online platforms is to reduce the number of objects in the DM that infringe the rights of copyright owners and allow an increase in the circulation of unlicensed products that also infringe copyrighted works. At the same time, Article 17(4) of the DSM Directive establishes liability for unauthorised acts of communication to the public, including making available to the public, copyright-protected works and other subject matter.[56] However, this provision also excludes the liability in cases where OCSS providers:
- made best efforts to obtain a license;
- made best efforts not to display any copyrighted content which has been registered with the platform by rights-holders;
- acted quickly to remove any copyrighted content upon receipt of valid notice from the rights-holder;
- made best efforts to prevent the re-upload of taken-down content.[57]
It is also important to note with regard to this article that, in accordance with Article 17(8) of the DSM Directive, it excludes the need for monitoring by the EU Member States for the conclusion of licensing agreements and the necessary license admission of the relevant content to the online platform.
One of the problematic provisions of this article is precisely the establishment of responsibility for unlicensed access of content to the platform, which should regulate the recognition of objects that infringe copyright. To do this, many companies, such as YouTube, had to establish a special usage policy that allows rights-holders to register copyrighted content with YouTube so that user-uploaded material can be scanned against it.[58] Filtering technology, according to some experts, is not suited to comprehend the complexities of what is and is not authorized under copyright law, and so may impede the freedom of expression.[59] In this regard, one can also highlight the second report of the French Government on content recognition tools on digital sharing platforms commissioned by the Conseil Supérieur de la Propriété Littéraire et Artistique [High Council for literary and artistic property], which concludes that Article 17(7) of the DSM Directive does rule out the exclusive use of automated blocking based on content recognition technology.[60] In addition, the rising disparity between the value extracted from music by user-upload sites like YouTube and the money given to the music community—those who create and invest in music—determines the value gap.[61] From this point of view, a fair distribution of revenues to copyright holders has become of importance in order to ensure social stability and avoid disputes between copyright holders and online platforms.
- Emerging challenges in EU copyright law in the digital market
Digital technology and digital communications networks, such as the Internet and personal computers, are currently capturing all of the headlines.[62] For this reason, it is necessary to observe new developments in the field of technology in order to understand the possibility of changes in the field of digital copyright law, as well as to identify new facts of copyright infringement. Since the adoption of the DSM Directive, many critics and legal scholars have focused on the relationship between copyright and freedom of expression. However, it is also important to bear in mind that the COVID-19 pandemic, which has become the basis for the full transition to online sales and activities, has played an important role in deepening delinquency in the digital marketplace. Research and development in the face of COVID-19 is limited by the fact that the exclusive rights in copyright law can inhibit the remote supply of information to students and researchers. Given the urgent need to supply information remotely, libraries and educational establishments currently face impossible choices.[63]
In the EU, both copyright and the right to freedom of expression are considered basic rights. Because copyright and freedom of expression are both basic rights, finding a balance between the two is always difficult. One may argue that copyright promotes freedom of expression by encouraging individuals to speak their thoughts. On the other hand, some people may believe that copyrights restrict their ability to develop and produce new work, resulting in a contradiction between the two rights.[64]
In connection with the growth of various methods of copyright infringement, legislators have resorted to restrictions on certain actions that may entail a violation of the right to freedom of expression. This became one of the important findings of the CJEU’s case of Ashby Donald and others v. France, which confirmed that copyright enforcement, restrictions on the use of copyright-protected works and sanctions based on copyright law ultimately can be regarded as interferences with the right of freedom of expression and information.[65]Thus, despite the improvement of the copyright regulation system, freedom of expression, due to its ambiguity and abstractness in a digital network, may touch the boundaries of copyright, which have been unambiguously balanced to achieve the goals of protecting the rights of copyright holders and freedom of expression.
Overall, new business models and use patterns, such as the use of the internet to disseminate cross-border material, have a significant impact on consumers and the creative industries and constitute a challenge to copyright protection in the DM.[66]
- Conclusion
To start with, the main problem in this work is the study of copyright infringement within the DM. As a result of research, it becomes clear that copyright infringement in the DM is quite volatile due to the improvement of technology and the current tools of the DM, and therefore require regular changes, both from a practical and legislative point of view. In doing so, considering the methods of infringement – streaming, downloading, stream-ripping, and torrent – were studied with reference to the judgments of the CJEU. This classification provided a definite overview of the concept of copyright infringement, and also indicated the tools and methods of infringement by individual users and intermediaries.
As a result of the analyses, it also became known that the regulation of the actions of individual users in the DM is a rather deep problem of the current digital copyright law. With the growth of individual social media users, it becomes difficult to limit their actions, as well as to supervise actions within the digital marketplace.
Moreover, the work identified the need and importance of applying the provisions of the DSM Directive in order to protect the rights of copyright holders, as well as to establish limitations and exceptions for certain actions and categories of persons that have a negative impact on the enforcement of copyright law. It should be noted that as a result of studying the provisions of the Directive, especially the specified articles, it becomes clear that this Directive has played a rather important role in defining new directions within the framework of digital copyright law.
Due to serious criticism, the provisions of Article 15 have undergone major changes after discussions by legislators. These changes, reflected in the last text of the article, became the basis for the completion of the critical attitude to this article. However, Article 17 is still controversial and criticized by online platforms. It should be borne in mind that the effects of these articles in practice can be learned after the complete transformed Directive in the legislation of all EU Member States. It will also be possible to learn the practice of applying new legislative acts as a result of new facts of copyright infringement, which will be interpreted by both the national courts of the Member States and the CJEU.
In the end, the work clarified the long-term nature of the possible restriction to the right of freedom of expression in relation to intellectual rights, namely copyright in the DM. Balancing the right to freedom of expression and copyright is a complex system of action, and given the regular changes in the digital marketplace, such balancing sometimes creates questions that fail to answer them. In addition, another important issue for a rather long time is the changes in the field of activity as a result of the COVID-19 pandemic, which played a negatively irreplaceable role in limiting the sustainability of all industries, including digital copyright.
BIBLIOGRAPHY
Legislation and Treaties
International
Berne Convention for the Protection of Literary and Artistic Works (Paris Act of July 24, 1971), most recently amended on September 28, 1979.
WIPO Copyright Treaty, Dec. 20, 1996, S. Treaty Doc. No. 105-17 (1997); 2186 U.N.T.S. 121; 36 I.L.M. 65 (1997)
WIPO Performances and Phonograms Treaty, Dec. 20, 1996 S. Treaty Doc. No. 105-17 (1997); 2186 U.N.T.S. 203; 36 I.L.M. 76 (1997)
EU and EEA
Charter of Fundamental Rights of the European Union [2012] Official Journal C 326, p. 391–407
Consolidated Version of the Treaty on European Union [2008] OJ C115/13.
Council Directive 91/250/EEC of 14 May 1991 on the legal protection of computer programs, Official Journal L 122, p. 42–46
Council Directive 92/100/EEC of 19 November 1992 on rental right and lending right and on certain rights related to copyright in the field of intellectual property, Official Journal L 346, p. 61–66
Council Directive 93/83/EEC of 27 September 1993 on the coordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission, Official Journal L 248, p. 15–21
Council Directive 93/98/EEC of 29 October 1993 harmonizing the term of protection of copyright and certain related rights, Official Journal L 290, p. 9–13
Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases, Official Journal L 77, p. 20–28
Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market, Official Journal L 178, p. 1–16
Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, Official Journal L 167, p. 10–19
Directive (EU) 2019/790 of the European Parliament and of the Council of 17 April 2019 on copyright and related rights in the Digital Single Market and amending Directives 96/9/EC and 2001/29/EC, Official Journal L 130, p. 92–125
Books and Articles
- Angelopoulos and J.P. Quintais, ‘Fixing Copyright Reform: A Better Solution to Online Infringement’, JIPITEC 10 (2019) p. 147–172
- Thetsidaeng, ‘User-generated content and Copyright Dilemma in Web 2.0 Era: Should the Specific Exception be introduced in The EU?’, Department of Law – Uppsala University, Master Programme in Intellectual Property Law – Master’s Thesis (2019) p. 1–62
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Guidelines
Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, ‘A Digital Single Market Strategy for Europe’, COM/2015/0192, p. 1-20
European Commission, ‘Frequently Asked Questions on Copyright Reform’, Shaping Europe’s digital future, 29 October 2020 https://ec.europa.eu/digital-single-market/en/faq/frequently-asked-questions-copyright-reform (accessed 26 May 2021)
European Parliament, ‘Copyright in the digital single market’, EU Legislation in Progress Briefing (2019) p. 1–14
Internet sources
- Kamocki and E. Ketzan ‘Copyright Law Overview’, Common Language Resources and Technology Infrastructure, CLARIN, 2021, https://www.clarin.eu/content/clic-overview-copyright-law (accessed 19 May 2021)
Your Europe, ‘Copyright: Your Rights’, Your Europe, 2021, https://tinyurl.com/bnbttdja (accessed 19 May 2021)
- Kenton, ‘Copyright Infringement’, Investopedia, 2020, https://www.investopedia.com/terms/c/copyright-infringement.asp (accessed 19 May 2021)
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- Letai, ‘ECJ: Unauthorized Streaming of TV content constitutes Copyright Infringement’, Kluwer Copyright Blog, 12 March 2013 https://tinyurl.com/4nhyfcaw (accessed 23 May 2021)
Palmer Biggs IP Solicitors, ‘Online Sharing Platforms such as the Pirate Bay’, PBIQ, 14 June 2017 https://tinyurl.com/9ds2vbyn (accessed 24 May 2021)
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- Robert, ‘Complying With Article 17 of the EU Copyright Directive’, TermsFeed, 23 December 2020 https://tinyurl.com/pd57wjjn (accessed 26 May 2021)
- Keller, ‘Article 17: (Mis)understanding the intent of the legislator’, Kluwer Copyright Blog, 28 January 2021 https://tinyurl.com/2mx4efsw (accessed 28 May 2021)
- Petošević, ‘EU Copyright Directive: Articles of Concern to Brand Owners’, International Trademark Association, INTA News, 28 April 2021 https://www.inta.org/eu-copyright-directive-articles-of-concern-to-brand-owners/ (accessed 28 May 2021)
Copyright & Legal Matters Working Group, ‘Europe Must Take Urgent Copyright Law Action To Support Distance Learning & Research During the Coronavirus Pandemic’, LIBER, 14 April 2020 https://libereurope.eu/article/copyright-coronavirus-statement/ (accessed 30 May 2021)
- Voorhoof and I. Høedt-Rasmussen, ‘ECHR: Copyright vs. freedom of expression’, Kluwer Copyright Blog, 25 January 2013 https://tinyurl.com/5cby7h2r (accessed 31 May 2021)
TABLE OF CASES
Case C-527/15 Stichting Brein v. Jack Frederik Wullems [2017] EU:C:2017:300
Case C–5/08 Infopaq International A/ S v. Danske Dagblades Forening [2009] EU:C:2009:465
Case C-117/15 Reha Training [2016] EU:C:2016:379
Case C-325/14 SBS Belgium NV v SABAM [2015], EU:C:2015:764
Case C-527/15 Stichting Brein vs. Jack Frederik Wullems [2017], EU:C:2017:300
Case C-466/12 Svensson and Others vs Retriever [2014], EU:C:2014:76
Case C-160/15 GS Media v Sanoma Media Netherlands BV and Others [2016], EU:C:2016:644
Joined Cases C-236/08 to C-238/08 Google France and Google [2010] EU:C:2010:159
Case C-324/09 L’Oréal and Others [2011] EU:C:2011:47
Case C 607/11 ITV Broadcasting Ltd and Others v TVCatchUp Ltd. [2013] EU:C:2013:147
Case C-265/16 VCAST Limited v RTI SpA [2017] EU:C:2017:913
Case C-610/15 Stichting Brein v Ziggo BV and XS4All Internet BV [2017] EU:C:2017:456
Case C-435/12 ACI Adam BV and Others v Stichting de Thuiskopie and Stichting Onderhandelingen Thuiskopie vergoeding [2014] EU:C:2014:254
[1] I. Atanasova, ‘Copyright Infringement In Digital Environment’, 1 The Journal of Law and Economics (2019) p. 13
[2] K. Vibhute and F. Aynalem, ‘Legal Research Methods’, Teaching Material (2009) p. 22
[3] Art.267 Consolidated Version of the Treaty on European Union [2008] OJ C115 / 13
[4] M. McConville and W.H. Chui, ‘Research Methods for Law’ 2nd edition Edinburgh University Press (2017) p. 17
[5] P. Kamocki and E. Ketzan ‘Copyright Law Overview’, Common Language Resources and Technology Infrastructure, CLARIN, 2021, https://www.clarin.eu/content/clic-overview-copyright-law, (accessed 19 May 2021)
[6] Your Europe, ‘Copyright: Your Rights’, Your Europe, 2021, https://tinyurl.com/bnbttdja, (accessed 19 May 2021)
[7] Atanasova, loc. cit. n. 1, at p. 14
[8] J. Schönning, ‘The Legitimacy of the InfoSoc Directive’, Faculty of Law – Lund University, Master’s thesis (2010) p. 1
[9] ‘Council Directive 2019/790 on copyright and related rights in the Digital Single Market’ (2019) Official Journal L 130, p. 92
[10] W. Kenton, ‘Copyright Infringement’, Investopedia, 2020, https://www.investopedia.com/terms/c/copyright-infringement.asp (accessed 19 May 2021)
[11] Ibid.
[12] R. Braun, ‘Forms of Copyright Infringement’, LEGALZOOM, 9 March 2021, https://www.legalzoom.com/articles/forms-of-copyright-infringement (accessed 22 May 2021)
[13] Your Europe, ‘Copyright: Your Rights’, Your Europe, 2021, https://tinyurl.com/bnbttdja (accessed 19 May 2021)
[14] R. Moncada, ‘The European Digital Single Market’, Eyes on Europe, L’équipe Redaction, 16 October 2017, https://www.eyes-on-europe.eu/the-european-digital-single-market/ (accessed 21 May 2021)
[15] Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, ‘A Digital Single Market Strategy for Europe’, COM/2015/0192, p. 3
[16] Ibid., p. 4
[17] Ibid., p. 4
[18] Ibid., p. 5
[19] N. Wajsman et al., ‘Online Copyright Infringement in the European Union Music, Films and TV, Trends and Drivers’, European Union Intellectual Property Office (2019) p. 12
[20] Case C-527/15 Stichting Brein v. Jack Frederik Wullems [2017] EU:C:2017:300, para. 70
[21] Wajsman, loc. cit. n. 15, at p. 13
[22] C. Angelopoulos and J.P. Quintais, ‘Fixing Copyright Reform: A Better Solution to Online Infringement’, JIPITEC 10 (2019) p. 150
[23] Ibid.
[24] Ibid., p. 151
[25] Case C–5/08 Infopaq International A/ S v. Danske Dagblades Forening [2009] EU:C:2009:465, para. 51
[26] Case C-117/15 Reha Training [2016] EU:C:2016:379, para. 37
[27] Case C-325/14 SBS Belgium NV v SABAM [2015], EU:C:2015:764, para. 16
[28] Ibid., para. 17
[29] Case C-527/15 Stichting Brein vs. Jack Frederik Wullems [2017], EU:C:2017:300, para. 32
[30] Case C-466/12 Svensson and Others vs Retriever [2014], EU:C:2014:76, para. 24
[31] Case C-160/15 GS Media v Sanoma Media Netherlands BV and Others [2016], EU:C:2016:644, para. 33
[32] Angelopoulos, loc. cit. n. 18, at p. 163
[33] Joined Cases C-236/08 to C-238/08 Google France and Google [2010] EU:C:2010:159, para. 112
[34] Case C-324/09 L’Oréal and Others [2011] EU:C:2011:47, para. 111
[35] Wajsman, loc. cit. n. 15, at p. 13
[36] ‘Council Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society’ [2001] Official Journal L 167, p. 15
[37] Wajsman, loc. cit. n. 15, at p. 13
[38] P. Letai, ‘ECJ: Unauthorized Streaming of TV content constitutes Copyright Infringement’, Kluwer Copyright Blog, 12 March 2013 https://tinyurl.com/4nhyfcaw (accessed 23 May 2021)
[39] Case C‑607/11 ITV Broadcasting Ltd and Others v TVCatchUp Ltd. [2013] EU:C:2013:147, para. 26
[40] Wajsman, loc. cit. n. 15, at p. 14
[41] Case C-265/16 VCAST Limited v RTI SpA [2017] EU:C:2017:913, para. 54
[42] Wajsman, loc. cit. n. 15, at p. 14
[43] Palmer Biggs IP Solicitors, ‘Online Sharing Platforms such as the Pirate Bay’, PBIQ, 14 June 2017 https://tinyurl.com/9ds2vbyn (accessed 24 May 2021)
[44] Case C-610/15 Stichting Brein v Ziggo BV and XS4All Internet BV [2017] EU:C:2017:456, para. 38
[45] Ibid., para. 48
[46] Case C-435/12 ACI Adam BV and Others v Stichting de Thuiskopie and Stichting Onderhandelingen Thuiskopie vergoeding [2014] EU:C:2014:254, para. 53-54
[47] S. Bergsma, ‘Copyright Holders one step closer to better protection in Digital Market’, De Brauw Blackstone Westbroek, DEBRAUW, 17 April 2019 https://tinyurl.com/pskscnyy (accessed 24 May 2021)
[48] Ibid.
[49] Art. 15.1 ‘Council Directive 2019/790 on copyright and related rights in the Digital Single Market’ (2019) Official Journal L 130, p. 118
[50] Ibid., Art. 15.5, p. 119
[51] Ibid., Art. 15.4, p. 119
[52] European Commission, ‘Frequently Asked Questions on Copyright Reform’, Shaping Europe’s digital future, 29 October 2020 https://ec.europa.eu/digital-single-market/en/faq/frequently-asked-questions-copyright-reform (accessed 26 May 2021)
[53] Ibid.
[54] Art. 17.1 ‘Council Directive 2019/790 on copyright and related rights in the Digital Single Market’ (2019) Official Journal L 130, p. 119
[55] B. Robert, ‘Complying With Article 17 of the EU Copyright Directive’, TermsFeed, 23 December 2020 https://tinyurl.com/pd57wjjn (accessed 26 May 2021)
[56] Art. 17.4 ‘Council Directive 2019/790 on copyright and related rights in the Digital Single Market’ (2019) Official Journal L 130, p. 120
[57] Robert, cit. n. 51
[58] Robert, cit. n. 51
[59] Robert, cit. n. 51
[60] P. Keller, ‘Article 17: (Mis)understanding the intent of the legislator’, Kluwer Copyright Blog, 28 January 2021 https://tinyurl.com/2mx4efsw (accessed 28 May 2021)
[61] S. Petošević, ‘EU Copyright Directive: Articles of Concern to Brand Owners’, International Trademark Association, INTA News, 28 April 2021 https://www.inta.org/eu-copyright-directive-articles-of-concern-to-brand-owners/ (accessed 28 May 2021)
[62] M. Peters, ‘The Challenge of Copyright in the Digital Age’, Conferencia pronunciada en el Seminario Sociedad de la Información [Conference delivered at the Information Society Seminar] (2006) p. 59
[63] Copyright & Legal Matters Working Group, ‘Europe Must Take Urgent Copyright Law Action To Support Distance Learning & Research During the Coronavirus Pandemic’, LIBER, 14 April 2020 https://libereurope.eu/article/copyright-coronavirus-statement/ (accessed 30 May 2021)
[64] C. Thetsidaeng, ‘User-generated content and Copyright Dilemma in Web 2.0 Era: Should the Specific Exception be introduced in The EU?’, Department of Law – Uppsala University, Master Programme in Intellectual Property Law – Master’s Thesis (2019) p. 36
[65] D. Voorhoof and I. Høedt-Rasmussen, ‘ECHR: Copyright vs. freedom of expression’, Kluwer Copyright Blog, 25 January 2013 https://tinyurl.com/5cby7h2r (accessed 31 May 2021)
[66] European Parliament, ‘Copyright in the digital single market’, EU Legislation in Progress Briefing (2019) p. 2
The articles on this blog are not, nor are they intended to be, legal advice. You should consult a lawyer for individual advice or assessment regarding your own situation. The article only reflects the views of the author.