Geiger and Jütte, ‘Moderation by Digital Platforms in the EU? The Commission’s Guidance on Article 17 CDSM Directive in the light of the YouTube/Cyando judgement and the AG’s Opinion in C-401/19′

ABSTRACT
The Directive on Copyright in the Digital Single Market (CDSM Directive) might fundamentally change the way works and other subject matter protected by copyright will be used on online platforms. Article 17 of the Directive obliges such platforms, based on information they receive from rightholders, to ensure that copyright infringing uploads made by their users are prevented and/or removed by an internalized procedure over which platform operators exercise control. Important enforcement mechanisms are thereby left to private entities who decide what content can (or cannot) be available on their platforms. More problematic is that it seems that the immense number of uploads can only be managed by automated AI-based filtering technologies incapable of properly distinguishing between lawful and unlawful uses. Such an indiscriminate control of uploads creates a serious danger of (over)blocking perfectly legitimate content which potentially results in significant limitations of fundamental rights such as the right to freedom of expression. At the same time, Article 17 also forbids general monitoring of the content available on platforms and clearly mandates to safeguard user’s rights protected by exceptions and limitations to copyright such as quotations, criticism and review or caricature, parody or pastiche. This obligation of result leads to an unresolvable conflict and creates great difficulties for Member States when implementing the provision in a fundamental rights compatible way. Moreover, the lack of clarity of the provision has led Member States to interpret it in significantly diverging ways, jeopardizing the objective of harmonization behind the Directive. Therefore, the interpretation guidelines by the European Commission foreseen by Article 17(10) to help Member States in their implementation efforts were impatiently awaited, in particular since Article 17 is facing an action for annulment before the Court of Justice of the European Union for potentially violating the right to freedom of expression …

Geiger, Christophe and Jütte, Bernd Justin, Towards a Virtuous Legal Framework for Content Moderation by Digital Platforms in the EU? The Commission’s Guidance on Article 17 CDSM Directive in the light of the YouTube/Cyando judgement and the AG’s Opinion in C-401/19 (July 18, 2021). Forthcoming in: European Intellectual Property Review (2021).

First posted 2021-08-17 10:00:11

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