What is Left of User Rights? – Algorithmic Copyright Enforcement and Free Speech in the Light of the Article 17 Regime

Abstract

Article 17 of the Directive on copyright and related rights in the Digital Single Market (the DSM Directive) has strengthened the protection of copyright holders. Moving forward, online content-sharing providers will be responsible for copyright infringement unless the use of works on their platforms is authorized or if they have made ‘best efforts’ to obtain an authorization and prevent the availability of unlicensed works. At the same time, the Directive has made it clear that users of protected works shall be able to rely on the existing limitations and exceptions regarding quotation, criticism and review and caricature, parody or pastiche. The Directive even casts these limitations and exceptions as user rights. This paper points out that copyright’s limitations and exceptions have traditionally constituted a corner stone in the internal balancing of the interests of users against rights holders and with a clear view of safeguarding the interests of free expression and information protected by the Charter. Given the overall purpose of the DSM Directive in strengthening the position of rights holders, there is a dire risk that the benefits of the limitations and exceptions evaporate in the attempts of platform operators to escape liability by use of algorithmic enforcement. The article uses the recent decisions of the CJEU in Pelham, Funke Medien and Spiegel Online to draw attention to the central importance of the limitations and exception as the primary channel for fundamental rights analyses in copyright. It is finally pointed out how the DSM Directive–despite of its on-the-paper recognition of users’ rights–is most likely going to lead to a devaluation of those same rights.