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Bermuda Triangle – Licensing, Filtering and Privileging User-Generated Content Under the New Directive on Copyright in the Digital Single Market

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Bermuda Triangle – Licensing, Filtering and Privileging User-Generated Content Under the New Directive on Copyright in the Digital Single Market Martin Senftleben* Bermuda Triangle – Licensing, Filtering and Privileging User-Generated Content Under the New Directive on Copyright in the Digital Single Market “The Bermuda Triangle, also known as the Devil’s Triangle or Hurricane Alley, is a loosely- defined region in the western part of the North Atlantic Ocean, where a number of aircraft and ships are said to have disappeared under mysterious circumstances. […] Popular culture has attributed various disappearances to the paranormal or activity by extraterrestrial beings.”1Admittedly, the new Directive on Copyright in the Digital Single Market (“DSM Directive”)2 is unlikely to swallow aircrafts and ships. However, it creates a peculiar triangle of obligations to license, filter and privilege user-generated content that may lead to the disappearance of the open, participative internet which EU citizens currently enjoy. Even though some may find it hard to explain this final outcome, the new legislation is not the work of extraterrestrial beings but the result of EU law and policy making. To avoid the loss of open, democratic avenues for online content creation, national lawmakers will have to find the right amalgam of licensing and filtering obligations on the one hand, and new use privileges that offer room for user-generated content without prior authorization on the other. The following analysis sheds light on these regulatory options and their impact on freedom of expression and information in the digital environment. Introduction From the outset, the liability for user-generated content (“UGC”) was one of the most controversial issues addressed in the EU copyright reform debate.3 It is an issue that plays a * Ph.D.; Professor of Intellectual Property, Centre for Law and Internet, Vrije Universiteit Amsterdam; Visiting Professor, Intellectual Property Research Institute, University of Xiamen; Of Counsel, Bird & Bird, The Hague. 1 See Wikipedia, available at https://en.wikipedia.org/wiki/Bermuda_Triangle (last visited on 29 March 2019). 2 The following discussion is based on the text adopted by the European Parliament, 26 March 2019, Legislative Resolution on the Proposal for a Directive of the European Parliament and of the Council on Copyright in the Digital Single Market COM(2016)0593 – C8-0383/2016 – 2016/0280(COD), Document P8_TA- PROV(2019)0231. 3 Cf. Martin R.F. Senftleben/Christina Angelopoulos/Giancarlo F. Frosio/Valentina Moscon/Miguel Peguera/Ole-Andreas Rognstad, “The Recommendation on Measures to Safeguard Fundamental Rights and the Open Internet in the Framework of the EU Copyright Reform”, European Intellectual Property Review 40 (2018), 149; Christina Angelopoulos, “On Online Platforms and the Commission’s New Proposal for a Directive on Copyright in the Digital Single Market”, available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2947800; Giancarlo F. Frosio, “From Horizontal to Vertical: An Intermediary Liability Earthquake in Europe”, Oxford Journal of Intellectual Property and Practice 12 (2017), 565-575; Giancarlo F. Frosio, “Reforming Intermediary Liability in the Platform Economy: A European Digital Single Market Strategy”, Northwestern University Law Review 112 (2017), 19; R.M. Hilty/V. Moscon V. (eds.), “Modernisation of the EU Copyright Rules – Position Statement of the Max Planck Institute for Innovation and Competition”, Max Planck Institute for Innovation and Competition Research Paper No. 17- 12, Max Planck Institute for Innovation and Competition: Munich 2017; R.M. Hilty/V. Moscon, “Contributions by the Max Planck Institute for Innovation and Competition in Response to the Questions Raised by the Authorities of Belgium, the Czech Republic, Finland, Hungary, Ireland and the Netherlands to the Council Legal Service Regarding Article 13 and Recital 38 of the Proposal for a Directive on Copyright in the Digital Single Market”, available at http://www.ip.mpg.de/; CREATe et al., “Open letter to Members of the European Parliament and the Council of the European Union”, available at http://www.create.ac.uk/policy-responses/eu- copyright-reform/; E. Rosati, “Why a Reform of Hosting Providers’ Safe Harbour is Unnecessary Under EU – 1 – crucial role for many online platforms and copyright holders. Moreover, the liability question shapes the online information infrastructure that is currently available in the EU. With the opportunity to upload photos, films, music and texts, the participative web 2.0 transformed formerly passive users into active contributors to an open, democratic exchange of views and ideas via online discussion and news fora, social media and content repositories.4 A delicate question arising from this enhanced user involvement concerns copyright infringement. Under which conditions is an online platform liable for infringing content uploaded by its users? Departing from the safe harbour approach that had a major impact on the liability question in the past,5 the text that resulted from the EU copyright reform – laid down in Article 17 of the DSM-Directive6 – takes a strict, primary liability as a starting point: Member States shall provide that an online content sharing service provider performs an act of communication to the public or an act of making available to the public when it gives the Copyright Law”, CREATe Working Paper 2016/11 (August 2016), available at: https://ssrn.com/abstract=2830440; S. Stalla-Bourdillon/E. Rosati/M.C. Kettemann et al., “Open Letter to the European Commission – On the Importance of Preserving the Consistency and Integrity of the EU Acquis Relating to Content Monitoring within the Information Society”, available at: https://ssrn.com/abstract=2850483. 4 With regard to this remarkable development and its enormous economic potential, see the analysis conducted by the OECD, 12 April 2007, “Participative Web: User-Created Content”, Doc. DSTI/ICCP/IE(2006)7/Final, available at https://www.oecd.org/sti/38393115.pdf. As to the debate on user-generated content and the need for the reconciliation of divergent interests in this area, see Edward Lee, “Warming Up to User-Generated Content”, University of Illinois Law Review 2008, 1459 (1506-1513); J.-P. Triaille/S. Dusollier/S. Depreeuw/J.B. Hubin/F. Coppens/A. de Francquen, Study on the Application of Directive 2001/29/EC on Copyright and Related Rights in the Information Society, Study prepared by De Wolf & Partners in collaboration with the Centre de Recherche Information, Droit et Société (CRIDS), University of Namur, on behalf of the European Commission (DG Markt), Brussels: European Union 2013, 455-457; S.D. Jamar, “Crafting Copyright Law to Encourage and Protect User-Generated Content in the Internet Social Networking Context”, Widener Law Journal 19 (2010), 843; Natali Helberger/Lucie Guibault e.a., Legal Aspects of User Created Content, Amsterdam: Institute for Information Law 2009; M.W.S. Wong, “Transformative User-Generated Content in Copyright Law: Infringing Derivative Works or Fair Use?”, Vanderbilt Journal of Entertainment and Technology Law 11 (2009), 1075; B. Buckley, “SueTube: Web 2.0 and Copyright Infringement”, Columbia Journal of Law and the Arts 31 (2008), 235; T.W. Bell, “The Specter of Copyism v. Blockheaded Authors: How User-Generated Content Affects Copyright Policy”, Vanderbilt Journal of Entertainment and Technology Law 10 (2008), 841; S. Hechter, “User- Generated Content and the Future of Copyright: Part One – Investiture of Ownership”, Vanderbilt Journal of Entertainment and Technology Law 10 (2008), 863; G. Lastowka, “User-Generated Content and Virtual Worlds”, Vanderbilt Journal of Entertainment and Technology Law 10 (2008), 893. 5 Article 17(3) DSMD, supra note 2. As to the prior status quo reached at EU level, see CJEU, 23 March 2010, cases C-236/08-238/08, Google France and Google/Louis Vuitton et al., para. 57; CJEU, 12 July 2011, case C- 324/09, L’Oréal/eBay, para. 101-105, where the Court drew a clear distinction between acts carried out by the platform user and the activities of the hosting platform itself. Cf. Stefan Kulk, Internet Intermediaries and Copyright Law – Towards a Future-Proof EU Legal Framework, Utrecht 2018; Christina Angelopoulos, European Intermediary Liability in Copyright: A Tort-Based Analysis, Alphen aan den Rijn: Kluwer Law International 2016; Martin Husovec, Injunctions Against Intermediaries in the European Union – Accountable But Not Liable?, Cambridge: Cambridge University Press 2017; Christina Angelopoulos, European Intermediary Liability in Copyright: A Tort-Based Analysis, Alphen aan den Rijn: Kluwer Law International 2016; Thomas Hoeren/ Silviya Yankova, “The Liability of Internet Intermediaries – The German Perspective”, International Review of Intellectual Property and Competition Law 43 (2012), 501; Rita Matulionyte/Sylvie Nerisson, “The French Route to an ISP Safe Harbour, Compared to German and US Ways”, International Review of Intellectual Property and Competition Law 42 (2011), 55; Miguel Peguera, “The DMCA Safe Harbour and Their European Counterparts: A Comparative Analysis of Some Common Problems”, Columbia Journal of Law and the Arts 32 (2009), 481; Christiaan Alberdingk Thijm, “Wat is de zorgplicht van Hyves, XS4All en Marktplaats?”, Ars Aequi 2008, 573; Matthias Leistner, “Von “Grundig-Reporter(n) zu Paperboy(s)” Entwicklungsperspektiven der Verantwortlichkeit im Urheberrecht”, Gewerblicher Rechtsschutz und Urheberrecht 2006, 801. 6 See supra, note 2. – 2 – public access to copyright protected works or other protected subject matter uploaded by its users.7 However,
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