Harmonising Intermediary Liability IViR, 14 January 2017 Proposed New Legislation Prof. Dr. Martin Senftleben Vrije Universiteit Amsterdam Bird & Bird, The Hague

Towards a Modern, More European © interdependence of diverse creative content and innovative online services ‘Both — creative content and online services — are important for growth and jobs and the success of the internet economy.’ (p. 9) but: risk of a value gap ‘There is, however, growing concern about whether the current EU copyright rules make sure that the value generated by some of the new forms of online content distribution is fairly shared…’ (p. 9)

Value gap

Content platforms

Towards a Modern, More European © safe harbour for hosting as a backdoor to obtain website contents? ‘This has prompted a growing debate on the scope of this exemption and its application to the fast-evolving roles and activities of new players, and on whether these go beyond simple hosting or mere conduit of content.’ (p. 10) same point in ‘Online Platforms Opportunities and Challenges’ (May 2016), p. 8

Purpose of the Study changes to current EU legislation ‘enabling the effective enforcement of copyright and related rights in the digital environment, particularly on platforms which disseminate protected content.’ (p. 2) strategy: leaving general rules of the E-Commerce Directive untouched instead: neutralization of the safe harbour for hosting in copyright legislation

Proposed New Legislation

Art. 13(1) Proposed DSM Directive ‘Information society service providers that store and provide to the public access to large amounts of works or other subject-matter uploaded by their users shall, in cooperation with rightholders, take measures to ensure the functioning of agreements concluded with rightholders for the use of their works or other subject-matter or to prevent the availability...’ obligation to enter into agreements? or simply pacta sunt servanda?

Recital 38 Proposed DSM Directive ‘In respect of Article 14 [E-Commerce Directive], it is necessary to verify whether the service provider plays an active role, including by optimising the presentation of the uploaded works or subject-matter or promoting them, irrespective of the nature of the means used therefor.’ limiting the scope of the safe harbour? small players disadvantaged?

Art. 13(1) Proposed DSM Directive ‘Those measures, such as the use of effective content recognition technologies, shall be appropriate and proportionate. The service providers shall provide rightholders with adequate information on the functioning and the deployment of the measures…’ fundamental rights governing private relationships? but: reporting obligation only with regard to rightholders

Content recognition technologies

Public interest duly represented?

Art. 13(2) Proposed DSM Directive ‘Member States shall ensure that the service providers referred to in paragraph 1 put in place complaints and redress mechanisms that are available to users in case of disputes over the application of the measures referred to in paragraph 1.’ CJEU, UPC Telekabel Wien, para. 57 ‘...put in place...’ sufficient? EU legislator careless?

contact: m.r.f.senftleben@vu.nl The end. Thank you! contact: m.r.f.senftleben@vu.nl