ing agreement” that would cover any
otherwise infringing uploads.
It is not even remotely possible for
online content-sharing services to get
licenses from every copyright owner
of European works available in digital form. The aspiration of Article 17
seems to be to induce platforms to
obtain licenses from major European
copyright sectors, such as motion-picture producers, recording-industry
firms, and collecting societies that
represent other kinds of rights holders
(such as performing artists).
Article 17 gives European rights
holders considerable leverage to insist on substantial revenue flows and
other licensor-friendly terms as a condition of granting such licenses. Negotiating such licenses will be daunting because each member state of the
EU has its own national law, domestic
copyright industries, and collecting
societies. Despite the Directive’s aspiration to establish a “digital single
market,” no such market exists. You-Tube and Facebook may be able to
navigate the complexities of the EU
markets, but smaller service providers
may find it difficult or impossible to
conclude negotiations that will shield
them from Article 17 liability.
Licensing is also the principal goal
of Article 15. The Recitals of the DSM
Directive, which serve as a kind of explanatory preamble, emphasize that
high-quality journalism, which is important to fostering well-informed
public debate and democratic discourse, is expensive to produce. The
goal of Article 15 is to enable licensing
so that press publishers can develop
sustainable business models.
Although news aggregators, monitoring services, and search engines
make considerable revenues from advertising or subscriptions, very little, if
any, of those revenues are shared with
the press publishers, which seems
unfair because the contents these services provide to their users come from
As with Article 17, Article 15 creates
a liability risk for online services that
make use of EU press publisher contents that only licensing can overcome.
As with Article 17, Article 15 provides
press publishers with considerable leverage to conclude licenses on favorable terms to EU firms.
It remains to be seen how EU member
states will transpose the rules set forth
in Articles 15 and 17 in their national
laws. Perhaps some national legislators will coordinate efforts to resolve
some key ambiguities in the Directive
(such as the “best efforts” language of
Article 17 and “small extracts” in Article 15) in a manner that will enable the
relevant online service providers to assess the risks of liability and benefits of
licensing on fair and reasonable terms.
Whether the licensing goals of
the DSM Directive will be fulfilled
also remains to be seen. Some online
content-sharing sites may decide to
license European contents, but many
smaller entities may decide to risk liability and/or limit the availability of
their services in the EU.
The experience of Germany and
Spain, both of which adopted a press
publisher right similar to Article 15,
does not bode well. Both countries
hoped to induce U.S. tech companies
to license press publisher news these
services provided to their users. Very
few licenses were concluded, and
some online services just stopped providing news from those countries.
Maybe the EU-wide nature of the
new DSM rights will serve as a stronger incentive for licensing, but it is too
early to conclude that either Article 15
or Article 17 will be effective in bringing more revenues to EU rights holders. One thing is for sure: U.S. online
services providers face some difficult
challenges in deciding how to proceed
in response to the new DSM rules.
Pamela Samuelson ( firstname.lastname@example.org) is
the Richard M. Sherman Distinguished Professor of Law
and Information at the University of California, Berkeley,
and a member of the ACM Council.
Copyright held by author.
Whether the licensing
goals of the DSM
Directive will be
remains to be seen.
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