Article 17(7) of Directive 2019/790 on Copyright and Related Rights in the Digital Single Market
Abstract: Prior to the adoption of Article 17 of the Directive (EU) 2019/790 on Copyright and Related Rights in the Digital Single Market, the e-Commerce Directive provided hosting liability exemptions for intermediary service providers. In addition, copyright exceptions and limitations were previously optional and their implementation was at liberty of the Member States. Under the new Article 17 Member States are obliged to allow exceptions and limitations enlisted under Article 17(7): ‘(a) quotation, criticism, review; (b) … for the purpose of caricature, parody or pastiche’. Under certain criteria platform hosting providers may be classified as Online Content Service Providers, who engage in ‘communication or making available to the public’. In such cases, they become liable for content uploaded on their platform by their users, unless the service providers conclude a licensing agreement with the rightholders or implement the ‘best efforts’ method to fulfil an obligation under Article 17. On the one hand, the Directive attempts to safeguard the freedom of expression online, on the other hand, introduction of Article 17 may impose inevitable implied filtering requirements, as [in]directly expressed under Article 17(4). The freedom of expression of users is still the underlying question, as content filtering will most likely be accomplished by technological means. The result of the research confirmed mandatory nature of exceptions and limitations under Article 17(7) of the Copyright Directive, yet their definition scope could be more elaborate to be implemented uniformly across the EU Member States. According to some scholars there are several inherent contradictions within Article 17 DSMD; and one could say also with e-Comm. Directive, yet it is very much a matter of interpretation and perspective, as some underlying obligations are implied as opposed to expressed.
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