The effects of Article 17 of the DSM Directive on the rights of users and their ISSPs

Abstract

Through Article 17 of the new Directive on Copyright in the Digital Single Market, the Commission aims to create an even playing field for copyright owners online, and improve the distribution of revenue in their favour. This dissertation thus explores what effects the provisions enacted to achieve this will in turn have on the rights of online users and information society service providers. This is done taking into account how they were treated under the previous regime. The traditional principles established in case law regarding users’ right to freedom of speech and service providers’ freedom to conduct a business vis a vis intellectual property rights are firstly discussed. It also considers the liability safe harbour afforded to service providers, which while not a fundamental human right as the others being discussed is still an important immunity which they have traditionally benefited from. It goes on to trace the roadmap towards Article 17, discussing the main issues that arose from the provisions of the originally proposed version of the law and how these could be considered incompatible with the rights and protections of users and service providers alike. In light of these considerations, the provisions of Article 17 are discussed. From this, it is concluded that the provisions of Article 17 certainly affect users and service providers. In the case of the latter, whilst the concerns on the freedom to conduct a business are addressed, Article 17 also strips away the applicability of the safe harbour from service providers falling in its scope and creates higher risks of incurring liability. This, coupled with the high likeliness of upload filter implementation by service providers to achieve the aims of Article 17, may in turn lead to over-blocking of legitimate content, affecting the freedom of expression of online users. Finally, it is highlighted however that national transpositions of the Directive still have the potential and opportunity to use the implementations of the law to create safeguards against the possible negative effects of Article 17.