Selected Aspects of Implementing Article 17 of the Directive on Copyright in the Digital Single Market into National Law – Comment of the European Copyright Society

Abstract

The national implementation of Article 17 of the Directive on Copyright in the Digital Single Market (DSMD) poses particular challenges. Article 17 is one of the most complex – and most controversial – provisions of the new legislative package which EU Member States must transpose into national law by 7 June 2021. Seeking to contribute to the debate on implementation options, the European Copyright Society addresses several core aspects of Article 17 that may play an important role in the national implementation process. It deals with the concept of online content-sharing service providers (OCSSPs) before embarking on a discussion of the licensing and content moderation duties which OCSSPs must fulfil in accordance with Article 17(1) and (4). The analysis also focuses on the copyright limitations mentioned in Article 17(7) that support the creation and dissemination of transformative user-generated content (UGC). It also discusses the appropriate configuration of complaint and redress mechanisms set forth in Article 17(9) that seek to reduce the risk of unjustified content removals. Finally, the European Copyright Society addresses the possibility of implementing direct remuneration claims for authors and performers, and explores the private international law aspect of applicable law – an impact factor that is often overlooked in the debate.