ISPss Copyright Liability in the EU Digital Single Market Strategy

Abstract

The EU Commission is eager to reform the current rules governing Internet Service Providers’ copyright liability. According to the Commission, online services providing access to copyright protected content uploaded by their users without the involvement of right holders have become main sources of access to content online. This affects right holders’ possibilities to determine whether, and under which conditions, their works and other subject-matters are used as well as their possibilities to get an appropriate remuneration for them (value gap). In order to close the reported value gap between right holders and online platforms, the Proposal for a Directive on copyright within the Digital Single Market strategy endorses a wider definition of the communication to the public and imposes new control obligations on ISPs. Such a policy choice raises some concerns. First, it is doubtful whether the Proposal is consistent with both the interpretation of the notion of communication to the public provided by the European Court of Justice case law and the safe harbor granted by the E-Commerce Directive. Moreover, the Proposal is not supported by any empirical evidence. The lack of robust statistical evidence of displacement of sales by online copyright infringements undermines the ratio of the intervention, that is, the reported value gap and the consequent need to assure the right holders of an adequate remuneration for the circulation of works on the Internet.