After the storm—examining the final version of Article 17 of the new Directive (EU) 2019/790

Abstract

... Article 171 of the recently adopted Directive (EU) 2019/790 on copyright and related rights in the Digital Single Market (DSMD) and amending Directives 96/9/EC and 2001/29/EC (OJ L 130/92 [2019]) contains a copyright-specific liability regime for online content-sharing service providers (OCSSPs) in relation to content uploaded by users of their services. This has been probably the most disputed provision of the new directive, causing even public protests,2 which have mostly focused on ‘upload filters’ that might be put in place by OCSSPs to avoid liability for unauthorized content on their platforms. The concern was and remains that such filters could also prevent the upload of lawful content. In the end, the protests and evoked scenarios of the end of the free Internet3 could not prevent Article 17 DSMD from entering into force. The public debate has however influenced the development of the provision since its first draft by the Commission as Article 13. Article 17 DSMD has evolved as a complex provision that tries to acknowledge and balance the different interests at stake.