EU Directive on Copyright in the Digital Single Market and ISP Liability: What's Next at International Level?

Abstract

The recent approval of the Directive (EU) 2019/790 on copyright and related rights in the Digital Single Market (DSM Directive) by the European Union has caused a considerable storm among the internet users, scholars, practitioners and industries. Particularly controversial was the original obligation of ISPs to filter the content upload by platforms users with the purpose of avoiding copyright infringements in the draft of Article 13. For this reason, the Directive has been even named the “death of the internet”. The final text (renumbered in Art. 17) provides for no general monitoring obligation, however, the ISPs will likely be required to implement filtering measures to avoid liability for unauthorized acts of communication to the public, including making available to the public, of copyright-protected works. Therefore, the DSM Directive has introduced a European regime of ISPs liability that stands in contrast with the existing laws in countries outside the EU. This lack of harmonization will have a negative impact in the ISPs and will eventually lead to a slowdown of internet at a global scale. In order to limit these consequences, this Article proposes the adoption of an International Treaty in the WIPO that sets forth minimum standards on the role of the ISPs, the liability of the ISPs and safe harbors. The proposed Treaty gives freedom to States to require or not filtering obligations. Any filtering requirements should be specific, limited, subject to human review, and should not impose substantial costs on ISPs.