WeChat and Distant Family Intergenerational Communication in China: A Study of Online Content Sharing on WeChat

Article 17 of the Directive on copyright and related rights in the Digital Single Market (the DSM Directive) has strengthened the protection of copyright holders. Moving forward, online content-sharing providers will be responsible for copyright infringement unless the use of works on their platforms is authorized or if they have made ‘best efforts’ to obtain an authorization and prevent the availability of unlicensed works. At the same time, the Directive has made it clear that users of protected works shall be able to rely on the existing limitations and exceptions regarding quotation, criticism and review and caricature, parody or pastiche. The Directive even casts these limitations and exceptions as user rights. This paper points out that copyright’s limitations and exceptions have traditionally consti- tuted a corner stone in the internal balancing of the interests of users against rights holders and with a clear view of safeguarding the interests of free expression and information protected by the Charter. Given the overall purpose of the DSM Directive in strengthening the position of rights holders, there is a dire risk that the benefits of the limitations and exceptions evaporate in the attempts of platform operators to escape liability by use of algorithmic enforcement. The article uses the recent decisions of the CJEU in Pelham, Funke Medien and Spiegel Online to draw attention to the central importance of the limitations and exception as the primary channel for fundamental rights analyses in copyright. It is finally pointed out how the DSM Directive –despite of its on-the-paper recognition of users’ rights– is most likely going to lead to a devaluation of those same rights.

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Platform Liability Under Art. 17 of the Copyright in the Digital Single Market Directive, Automated Filtering and Fundamental Rights: An Impossible Match

GRUR International ◽

10.1093/grurint/ikab037 ◽

2021 ◽

Author(s):

Christophe Geiger ◽

Bernd Justin Jütte

Keyword(s):

European Union ◽

Freedom Of Expression ◽

Single Market ◽

Fundamental Rights ◽

European Convention ◽

Specific Class ◽

The European Union ◽

Online Content ◽

Content Sharing ◽

The Eu

Abstract The Directive on Copyright in the Digital Single Market (CDSM Directive) introduced a change of paradigm with regard to the liability of some platforms in the European Union. Under the safe harbour rules of the Directive on electronic commerce (E-Commerce Directive), intermediaries in the EU were shielded from liability for acts of their users committed through their services, provided they had no knowledge of it. Although platform operators could be required to help enforce copyright infringements online by taking down infringing content, the E-commerce Directive also drew a very clear line that intermediaries could not be obliged to monitor all communications of their users and install general filtering mechanisms for this purpose. The Court of Justice of the European Union confirmed this in a series of cases, amongst other reasons because filtering would restrict the fundamental rights of platform operators and users of intermediary services. Twenty years later, the regime for online intermediaries in the EU has fundamentally shifted with the adoption of Art. 17 CDSM Directive, the most controversial and hotly debated provision of this piece of legislation. For a specific class of online intermediaries known as ‘online content-sharing providers’ (OCSSPs), uploads of infringing works by their users now result in direct liability and they are required undertake ‘best efforts’ to obtain authorization for such uploads. With this new responsibility come further obligations which oblige OCSSPs to make best efforts to ensure that works for which they have not obtained authorization are not available on their services. How exactly OCSSPs can comply with this obligation is still unclear. However, it seems unavoidable that compliance will require them to install measures such as automated filtering (so-called ‘upload filters’) using algorithms to prevent users from uploading unlawful content. Given the scale of the obligation, there is a real danger that measures taken by OCSSPs in fulfilment of their obligation will amount to expressly prohibited general monitoring. What seems certain, however, is that the automated filtering, whether general or specific in nature, cannot distinguish appropriately between illegitimate and legitimate use of content (e.g. because it would be covered by a copyright limitation). Hence, there is a serious risk of overblocking certain uses that benefit from strong fundamental rights justifications such as the freedom of expression and information or freedom of artistic creativity. This article first outlines the relevant fundamental rights as guaranteed under the EU Charter of Fundamental Rights and the European Convention of Human Rights that are affected by an obligation to monitor and filter for copyright infringing content. Second, it examines the impact on fundamental rights of the obligations OCSSPs incur under Art. 17, which are analysed and tested also with regard to their compatibility with general principles of EU law such as proportionality and legal certainty. These are, on the one hand, obligations to prevent the upload of works for which they have not obtained authorization and, on the other, an obligation to remove infringing content upon notification and prevent the renewed upload in relation to these works and protected subject matter (so-called ‘stay-down’ obligations). Third, the article assesses the mechanisms to safeguard the right of users of online content-sharing services under Art. 17. The analysis demonstrates that the balance between the different fundamental rights in the normative framework of Art. 17 CDSM Directive is a very difficult one to strike and that overly strict and broad enforcement mechanisms will most likely constitute an unjustified and disproportionate infringement of the fundamental rights of platform operators as well as of users of such platforms. Moreover, Art. 17 is the result of hard-fought compromises during the elaboration of the Directive, which led to the adoption of a long provision with complicated wording and full of internal contradictions. As a consequence, it does not determine with sufficient precision the balance between the multiple fundamental rights affected, nor does it provide for effective harmonization. These conclusions are of crucial importance for the development of the regulatory framework for the liability of platforms in the EU since the CJEU will have to rule on the compatibility of Art. 17 with fundamental rights in the near future, as a result of an action for annulment filed by the Polish government. In fact, if certain features of the article are considered incompatible with the constitutional framework of the EU, this should lead to the erasing of certain paragraphs and, possibly, even of the entire provision from the text of the CDSM Directive.

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Online content sharing service providers’ liability in the directive on copyright in the Digital Single Market

Unio - EU Law Journal ◽

10.21814/unio.6.1.2705 ◽

2020 ◽

Vol 6 (1) ◽

pp. 100-114

Author(s):

Isabel Espín Alba

Keyword(s):

Service Provider ◽

Service Providers ◽

Digital Technologies ◽

Single Market ◽

Online Content ◽

Content Sharing ◽

The Way

Digital technologies have transformed the way creative content protected by copyright is created, produced, distributed and accessed. The Directive on Copyright in the Digital Single Market aims to update copyright rules, taking into account changes in these paradigms. Of all the aspects of the reform, this paper critically analyses the content of Article 17, in order to deal with the so-called value gap that forced a change in the liability regime of the online content sharing service provider.

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Case Study on the Liability of the Online Content Sharing Service Providers : With an analysis on Korean Supreme Court’s decision

Interdisciplinary research in arts and culture ◽

10.47415/irac.1.1.2 ◽

2020 ◽

Vol 1 (1) ◽

pp. 27-38

Author(s):

Jae-jin Kim

Keyword(s):

Service Providers ◽

Online Content ◽

Content Sharing

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Article 30—Review

10.1093/oso/9780198858591.003.0031 ◽

2021 ◽

pp. 416-416

Author(s):

Eleonora Rosati

Keyword(s):

Service Providers ◽

European Parliament ◽

Single Market ◽

Online Content ◽

European Economic ◽

The Public ◽

Content Sharing ◽

The Impact ◽

Copyright Directive ◽

Annual Turnover

This chapter talks about Chapter 30 of Directive 2019/790, a copyright directive of the Digital Single Market in Europe. It mentions the plan of the Commission to carry out a review of this Directive and present a report on the main findings to the European Parliament, the Council, and the European Economic and Social Committee on 7 June 2026. It also mentions the assessment of Commission on 7 June 2024 of the impact of the specific liability regime set out in Article 17 of Directive 2019/790 regarding online content-sharing service providers that have an annual turnover of less than EUR 10 million. The chapter cites services that have been available to the public in the Union for less than three years under Paragraph 6 of Article 17. It reminds Member States to provide the Commission with the necessary information for the preparation of the report that will be presented on 7 June 2026.

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Article 17—Use of Protected Content by Online Content-sharing Service Providers

10.1093/oso/9780198858591.003.0018 ◽

2021 ◽

pp. 301-359

Author(s):

Eleonora Rosati

Keyword(s):

Subject Matter ◽

Service Provider ◽

Service Providers ◽

Single Market ◽

Public Access ◽

Communication To The Public ◽

Online Content ◽

The Public ◽

Content Sharing

This chapter describes Article 17 of Directive 2019/790, a copyright order in the Digital Single Market, which talks about the use of protected content by online content-sharing service providers. It talks about an online content-sharing service provider that can perform an act of communication to the public or an act of making available to the public when it gives the public access to copyright-protected works or other protected subject matter uploaded by its users. It also outlines how an online content-sharing service provider can obtain an authorisation from the rightholders by concluding a licensing agreement. The chapter analyzes the performance of an online content-sharing service provider of an act of communication to the public or an act of making available to the public under the conditions laid down in Directive 2019/790. It highlights how online content-sharing service providers will be liable for unauthorised acts of communication to the public if no authorisation is granted.

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