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De Monfort University Leicester School of Law
Gateway House, Leicester LE1 9BH
26 May 2021
To: Government of Canada
Re: Consultation on a modern copyright famework for online intermediaries
copyright-consultation-droitdauteur@canada.ca
Submission to the consultation on a modern copyright framework for online intermediaries
By: Zoi KrokidaFootnote 1
Abstract
This submission responds to the Consultation on a Modern Copyright Framework for Online Intermediaries by the Government of Canada. It provides an overview of the current legal framework on the liability of online intermediariesFootnote 2 at the European level. More specifically, it discusses Article 17 of the Copyright in the Digital Single Market Directive (EU) 2019/790 as well as the emerging legislation with the Proposal for a Digital Services Act Regulation that has been announced by the European Commission on the 15th of December 2020 and offers a set of recommendations.
Introduction
I am very happy for the opportunity to provide comments on the consultation of the Government of Canada. I am an EU scholar based in the UK with research interests on the European regulatory framework of online intermediaries and therefore in this submission I will provide comments and suggestions with regard to the European approach on the liability of online intermediaries and the available enforcement remedies to right holders against online intermediaries.
Liability of online intermediaries
The European approach
Within the copyright context, at the European level the main legislative tool that regulates online intermediaries’ liability is the Copyright in the Digital Single Market Directive (EU) 2019/790. More specifically, Article 17 (1) of the Directive sets forth the liability of online content sharing service providers for the commission of copyright infringements. The provision introduces a new type of host internet service providers, the online content sharing service providers and attributes primary liability rules to them. The attribution of primary liability rules have been severely criticized by a great number of academic scholars and civil society organizations due to the high risk of over-blocking of legitimate content.Footnote 3 Further, Article 17 (4) sets forth three conditions in order to exonerate online content sharing service providers from liability. In particular, online content sharing service provides must demonstrate that they made the best efforts conclude licensing agreements with the right holders or demonstrate that they made the best efforts to terminate or prevent the emergence of infringing content online.
However, those conditions seem to be subject to controversy. With regard to licensing, it has been argued that it is impossible to license all content that is available online while the use of umbrella licenses might be tricky.Footnote 4 Further, while Article 17(8) precludes the imposition of general monitoring obligations, it seems impossible to satisfy the requirement of best efforts to seek to terminate the circulation of infringing content or prevent the reappearance of infringing content within the OCSPs’ networks, without deploying filtering technology. This has been reiterated by the former Commissioner for Digital Affairs after the final vote of the Copyright in the Digital Single Market Directive who stated that the use of filtering technology might be unavoidable in order to prevent the dissemination of infringing content.Footnote 5 It is the risk of deploying filtering technology measures and its threat for users’ fundamental rights that led Poland to file a challenge before the Court of Justice of the European Union and request the annulment of Article 17 under the justification of violation of its Constitution.Footnote 6
EU Member states must implement the Copyright in the Digital Single Market Directive into their national legal systems by 7 June 2021. So far, only Netherlands,Footnote 7 HungaryFootnote 8, FranceFootnote 9 and GermanyFootnote 10 have transposed the Directive into their national legal system.
Apart from Article 17 of the Copyright in the Digital Single Market Directive, the proposed Regulation for Digital Services Act is also relevant to the regulatory framework for online intermediaries in the copyright context.
Current reform at the European level
On the 15th of December 2020, the European Commission announced the Proposal for Digital Services Act RegulationFootnote 11 in order to replace the e-Commerce Directive (EC) 2000/31/EC. The proposed Regulation constitutes one of the main priorities of the new President of the European Commission and is part of the EU agenda for making Europe fit for the Digital Age. The aim of the proposed Regulation is to “to ensure the best conditions for the provision of innovative digital services in the internal market, to contribute to online safety and the protection of fundamental rights, and to set a robust and durable governance structure for the effective supervision of providers of intermediary services.”Footnote 12
The Proposal has received warm welcome from different stakeholders.Footnote 13 This is mainly because the proposed Regulation includes a statutory provision for transparency for the operation of online intermediaries, impose additional obligations to very large online intermediaries, reinforces the prohibition of general monitoring obligations and the limited liability regime as well as envisages the creation of a supervisory authority on each member state, namely the Digital Services Coordinator.
From my perspective, amidst the most important and innovative provisions of the proposed Regulation is the envisaged authority for supervising the operation of providers of intermediary services. Article 38 (2) of the proposed Regulation states that “Member States shall designate one of the competent authorities as their Digital Services Coordinator. The Digital Services Coordinator shall be responsible for all matters relating to application and enforcement of this Regulation in that Member State, unless the Member State concerned has assigned certain specific tasks or sectors to other competent authorities…”
This understanding has already been supported by a growing number of scholars who argue in favour of the establishment of an independent body.Footnote 14 That proposed body could supervise the operation of internet service providers as well as act as a complaint mechanism mediator. Similar examples have already been identified at national level within the EU member states, namely in GreeceFootnote 15 and Italy.Footnote 16 For instance, in Greece the Committee for the Notification of Copyright and Related Rights Infringement has been established in 2017 and operates under the auspices of the Hellenic Copyright Organization. So far, the Committee has issued 17 decisions and its aim is to resolve the disputes between right holders and online intermediaries for copyright infringements.Footnote 17
However, certain flaws in the Proposal for the Digital Services Act Regulation have already been identified by leading scholars.Footnote 18 More specifically, more clarity is required with regard to the intersection of the Proposal for Digital Services Act Regulation with Article 17 of the Copyright in the Digital Single Market Directive, the imposition of a “Good Samaritan” clause, the use of automated technology by very large online platforms with regard to the termination of infringements within their networks and the funding scheme for the establishment of the Digital Services Coordinator.
Overall, the Proposal for a Digital Services Act seems to be a promising legislative piece. However, a number of structural flaws have been identified and reassessment is warranted. Following the experience of the legislative process of the Copyright in the Digital Single Market Directive, the legislative roadmap might be long and ambivalent and therefore it is too early to make predictions with regard to the final draft of the Regulation.
Apart from an overview of the legal framework of online intermediaries in the context of copyright law, this submission also presents the available enforcement tools for right holders against online intermediaries.
Enforcement tools of right holders against online intermediaries
The European approach
The legal basis for enforcement tools for right holders can be found in Article 8 (3) of the InfoSoc Directive (2001/29/EC) and Article 11 of the Enforcement Directive (2004/48/EC). Amidst the most common enforcement tools are the use of filtering technology or the issue of blocking injunctions.Footnote 19 Interestingly, the use of filtering tools have been rejected by the Court of Justice of the European Union in a cluster of decisions, namely Scarlet v Sabam (Case C-70/10), Sabam v Netlog (Case C-360/10), McFadden (Case C-484/14). The Court of Justice of the European Union in Scarlet v Sabam concluded in para. 40 “that the imposition of a filtering obligation would oblige it to actively monitor all the data relating to each of its customers in order to prevent any future infringement of intellectual-property rights. It follows that that injunction would require the ISP to carry out general monitoring, something which is prohibited by Article 15(1) of Directive 2000/31.” However, the recent line of case law seems to open the door for the use of filtering systems. For instance, the Court of Justice of the European Union in the case of Glawischnig v Facebook (Case C 18/18) stated that online intermediaries must identify and block identical or equivalent infringing content.Footnote 20 While this case addresses defamatory comments, it seems that it might also influence the copyright context. For instance, the Advocate General in Peterson/ YouTube (Joined Cases C682/18 and C683/18) clarified in para. 221 that Article 15 (1) of the e-Commerce Directive, which prohibits the imposition of general monitoring obligations, does not preclude the host internet service provider to detect and block not only identical copies of the infringing file, but also other equivalent files.
Another enforcement tool is the blocking injunction. Its permissibility has been stressed at the European level. More specifically, the Court of Justice of the European Union at the Telekabel case (Case C-314/12) concluded in paras 51 and 52 that a blocking injunction does not violate the fundamental right of online intermediaries to operate business while at the same time it enables the recipient of the injunction to undertake all reasonable measures to avoid liability. Yet, the issue of blocking injunctions by the courts have been subject to criticism because it might infringe users’ fundamental rights, namely Article 11 of the EU Charter of Fundamental Rights that addresses the right to receive and impart information while at the same time it might interfere with Article 47 of the EU Charter of Fundamental Rights that is about the right to an effective remedy and to a fair trial and the right of online intermediaries to conduct business as set forth in Article 16 of the EU Charter of Fundamental Rights.Footnote 21
Conclusion
In light of the above, I would therefore recommend to impose a set of specific obligations to online intermediaries, namely the issue of transparency reports on an annual basis and a statutory duty to remove infringing content from their networks. This could be achieved through a hybrid system of human review and technological tools. For instance, in Germany, following the Network Enforcement Law that combats hate speech online, Facebook hired 1200 employees who, in parallel with algorithmic review, review videos that might include hate speech and remove them.Footnote 22 In addition, I would suggest the creation of an independent body that would supervise the application of the rules and the compliance of the online intermediaries. The independent body would operate under certain principles such as proportionality, transparency, consistency and independence and would act as a mediator for disputes that arise between online intermediaries and right holders. This shall not replace the legal redress by the courts.
Should you wish to obtain more information about the current EU framework of online intermediary liability or my suggestions about the copyright reform, please do not hesitate to contact me.
Sincerely,
Dr. Zoi Krokida zoi.krokida@dmu.ac.uk