Abstract
On 15 December 2020, the European Commission submitted a proposal for a regulation on a single market for digital services (Digital Services Act, DSA) and amending Directive 2000/31/EC. The legislative project seeks to establish a robust and durable governance structure for the effective supervision of providers of intermediary services. To this end, the DSA sets out numerous due diligence obligations of intermediaries concerning any type of illegal information, including copyright-infringing content. Empirically, copyright law accounts for most content removal from online platforms, by an order of magnitude. Thus, copyright enforcement online is a major issue in the context of the DSA, and the DSA will be of utmost importance for the future of online copyright in the EU. Against this background, the European Copyright Society takes this opportunity to share its view on the relationship between the copyright acquis and the DSA, as well as further selected aspects of the DSA from a copyright perspective.
Highlights
Obligations of intermediaries concerning any type of illegal information, including copyright-infringing content
Copyright law accounts for most content removal from online platforms, by an order of magnitude
Copyright enforcement online is a major issue in the context of the DSA, and the DSA will be of utmost importance for the future of online copyright in the EU
Summary
A preliminary point on the relationship between the DSA and the EU copyright acquis concerns the potential scope of overlapping rules. In the context of this Opinion, we are only concerned with DSA rules that govern copyright-infringing content as a type of ‘‘illegal content’’9 transmitted, hosted or allowed to be searched and found by an ‘‘intermediary service’’ covered by the DSA, i.e. mere conduit, caching, hosting, online platform and online search engine services.[10]. Current EU copyright law covers this regulative space already. It provides for a multi-level approach to online platforms. If a platform qualifies as an ‘‘online content sharing service provider’’ (OCSSP) according to Art. 2(6) of the Copyright in the Digital Single Market Directive (CDSMD)[11] and supporting recitals, it is subject to the lex specialis of Art. 17 CDSMD, which sets out a special regime in relation to the right of communication to the public in Art. 3 InfoSoc Directive[12] and the liability exemption for hosting services in Art. 14 E-Commerce
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