Transparency in European Copyright Contract Law after Article 19 DSM Directive : Evaluation of the content and effects of the new transparency obligation

Abstract: After a longstanding reluctance on the side of EU legislature to interfere with the European fundamental principle of freedom of contract within the EU Member States, the European Commission had finally become aware of a problem that would lead it to deviate from this principle: If authors wish to assign exploitation rights of their copyright protected works to another party, they regularly suffer from a weaker bargaining power and information asymmetry compared to their contractual counterparts, resulting in the risk of not receiving fair remuneration. In April 2019, this was addressed within the adoption of Directive 2019/790 on copyright and related rights in the Digital Single Market (DSMD). All new rights to strengthen the authors’ contractual position (Articles 18-23 DSMD) are built on the premise of a high level of transparency. To ensure this, Article 19 DSMD introduces a mandatory transparency obligation to provide authors with information to assess their economic value and to then exercise their rights under the DSMD protection scheme. Yet, it faces several legal challenges, such as the issue of practical feasibility, legal uncertainties regarding the provisions’ scope, or the issue of enforcement in cases of non-compliance. Bearing in mind the fundamental importance of transparency to the entire con-tract protection of the DSMD, this analysis attempts to shed light on these issues. First, a comprehensive legislative study on Article 19 DSMD will be conducted to analyse its scope and implications. From that, it can be predicted that the transparency obligation is theoretically capable of achieving its objectives, but only on condition that Member States address the identified legal issues accordingly within their national transpositions. Secondly, this thesis provides a roadmap for Member States on how these legal issues could be addressed throughout a national transposition, interpretation, and application. In conclusion, Member States must go well beyond the minimum protection provided for in Article 19 DSMD by establishing a combination of measures for clarification and enforcement. The solutions proposed by this thesis (e.g., clarifying national provisions, statutory penalties, or the involvement of public authorities) might provide insightful guidance for Member States, especially those which that have not yet completed their national transpositions. Thus, this thesis aims to contribute to ensuring a high level transparency and to achieving the objectives of Article 19 DSMD.