Browsing by Subject "fundamental rights"

The new Directive on Copyright in the Digital Single Market (DSM Directive) was the pillar of the copyright package developed as part of the plan for an EU-wide copyright reform. This came as a response to the weaknesses observed in the existing framework, and aims to fill in the gaps of intermediary liability rules for online distribution of copyright protected works. The safe harbour provisions in the E-Commerce Directive in particular had left a dangerous loophole by allowing online content-sharing service providers (OCSSPs) to escape liability for infringing content on their platforms. Article 17 DSM intends to solve this issue by introducing a ‘specific liability mechanism’ that establishes an act of communication to the public for OCSSPs, unless they have satisfied the ‘best efforts’ criteria provided for in the article. While trying to achieve a clear objective, Article 17 raised several concerns regarding user protection as well as coherency with existing EU legislation, and was widely criticised for being too ambiguous to ensure an accurate interpretation of its autonomous concepts. The reference to automated recognition technology (i.e. upload filters) was particularly debated for its fundamental rights implications, and although the Polish challenge to the validity of Article 17 was rejected by the European Court of Justice (CJEU), the lack of legislative clarity played a large role in the delays to transpose the article into national legislation. This uncertainty resulted in a segmented implementation of the new liability rules, many of which threaten the purpose of the provision and the DSM Directive as a whole. This research intends to provide a comprehensive overview of the controversy surrounding Article 17 of the DSM Directive and observes how the nature and complexity of the article has influenced Member State transposition. The research shows specifically that Member States have divided into literal (traditional) transposition and elaboration (innovative) transposition, France and the Netherlands representing examples of the former method and Germany and Spain as examples of the latter method. Finland is included as an interesting example of implementation influenced by external political factors. Through this, the thesis asks to what extent the selected elements of Member State transpositions are compatible with the DSM Directive and which approach to transposition is most appropriate for the adoption of Article 17 into national legislation. The research determines that all selected Member States produced laws that were at risk of incorrect transposition, and ultimately finds that literal transposition is the more suitable option for the transposition of Article 17, based on an analysis of legislative and practical efficiency, EU-compatibility, and Member State discretion.