Bermuda Triangle – Licensing, Filtering and Privileging User-Generated Content Under the New Directive on Copyright in the Digital Single Market

Abstract

The new EU Directive on Copyright in the Digital Single Market creates a peculiar triangle of obligations to license, filter and privilege user-generated content (UGC). As it abolishes the traditional safe harbour for hosting in the case of copyrighted content, it may lead to the disappearance of the open, participative internet which EU citizens currently enjoy. To avoid the loss of open, democratic avenues for online content creation, national lawmakers will have to find the right amalgam of licensing and filtering obligations on the one hand, and new use privileges that offer room for user-generated content without prior authorization on the other. Against this background, the analysis sheds light on these regulatory options and their impact on freedom of expression and information in the digital environment. It demonstrates that the two options which the Digital Single Market Directive offers to alleviate the burden of strict liability for user-generated content – the licensing approach and the filtering approach – are problematic. The licensing approach imposes the task of clearing rights for the wide variety of UGC in the highly fragmented collective licensing framework in EU Member States. The filtering approach raises the spectre of content censorship following the maxims of cost and efficiency considerations of the content and platform industry. In comparison with these scenarios, the development of a broader use privilege for UGC has the advantage of avoiding an encroachment upon fundamental rights and safeguarding breathing space for open, participative online communication. If it is combined with an obligation to pay equitable remuneration for content remixes and mash-ups that do not fulfil quotation or parody standards, it also has the advantage of generating a revenue stream that benefits not only the creative industry but also individual creators. Implementing the new Directive, national lawmakers should thus consider all options: licensing, filtering and privileging UGC. A broadened copyright limitation infrastructure that supports UGC also provides important impulses for the development of filtering technology that follows a reverse logic. Instead of seeking to find protected third party content that renders UGC impermissible, a limitation-based filtering system focuses on creative user input that may justify its online dissemination despite the inclusion of protected third party material.