Vviewpoints
Legally Speaking
Europe’s Controversial
Digital Copyright
Directive Finalized
Considering the new liability risks for ISPs, search engines,
and news aggregators under recent EU-wide mandatory rules.
for online content-sharing platforms,
such as You Tube and Facebook.
Under laws in place in the EU and
U.S. since 1998, Internet service providers (ISPs) have enjoyed a safe harbor
from liability for infringing acts of their
users of which the ISPs were unaware.
ISPs faced liability only if they failed to
investigate and take down infringing
materials after receiving notice from
copyright owners about where such
materials were located.
Article 17 of the DSM Directive
(Article 13 under previous drafts) imposes strict liability on online content-sharing sites for user infringements
and obliges them to use “best efforts
to ensure the unavailability of specific
works.” Because EU member states
may decide that “best efforts” requires
platforms to use filtering technologies,
this provision has often been called the
“upload filter” rule. (Previous drafts of
the Directive were more pointed about
the need to use filtering technologies.)
There are two exceptions to the DSM
INTERNET GOVERNANCE RULES in the EU are about to change radically. The final version of its Directive on Copyright and Related Rights in the Digital
Single Market (DSM), which has been
under consideration for the past three
years, was promulgated on April 17,
2019. EU member states now have two
years to transpose the Directive’s rules
into their national laws.
In some respects, the DSM Directive is better than previous drafts
(of which more anon). There is still
reason to worry the new rules will be
harmful for freedom of expression
and information privacy interests of
individual creators and users. How
much harm will depend on how member states implement the Directive
and how courts interpret it, as many
of its terms are ambiguous.
This column discusses key differ-
ences between earlier drafts of the
DSM Directive and the final version
and makes some general observa-
tions on some aspirations that underlie
this Directive.
Repeal of the Safe Harbor for
ISP Storage of User Contents
The most significant and controversial
of the new DSM rules is the stiffer liability rules the Directive established
DOI: 10.1145/3363179
There is still reason
to worry the new
rules will be harmful
for freedom
of expression
and information
privacy requests.
