Intellectual Property

Intellectual Property

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Question One

Over time GIFS have become popular over time resulting in their consideration as transformative under copyright law because they do not undermine the market value of the original work. When determining whether a Gif is used fairly, the courts will consider the purposes of its use, the nature of the work copyrighted portion used, and the effect of its use. Therefore, the doctrine allows for fair use where created g Does not in any way create economic competition for the holder of the copyrighted work.

The coming into force of the directive o Copyright in the Digital Single Market in the year 2019 meant that the provisions could now get transported into the member states’ national laws. The directive is expected to get transposed by the member states before the deadline that has been set for June 2021. the DSM is directly envisaged to become applicable in relations between the obligations and rights related to Copyright on online platforms.

Article 17 of the EU Digital Single Markets (DSM) has been met with a huge uproar over concerns that the section would negatively impact the freedom of the internet despite the huge financial compensation that could result to the right holders. The charter has outlined under Article 1797) that the uploading of GIFS is restricted, and the CDSM Directive should therefore impact the lawful use. By making such uploads technically possible, there is a possibility that the authorization of uploaders to place reliance on the limitations and exceptions that relate to Copyright for the purposes outlined would make it difficult to ascertain whether it is infringing upon another person’s Copyright. Therefore, the limitations and exceptions aimed for purposes of quotation, caricature, review, postiche could require a proper understanding of the cultural, societal, historical, and political aspects. Thus, for there to be proper integration and realization of the provision would be necessary to have a mixture of cultural and contextual awareness. Therefore, under the law, the provision would be allowed. Still, whether it would be technically possible, there would need to have created more awareness of the cultural awareness of different people for the provision to be effected.

The provisions of Article 17, in general, have come under sharp criticism because of the argument that its contents are in contravention with the fundamental rights of human beings as it infringes upon the freedom of expression that is guaranteed expressly in the Charter of Fundamental Rights of the European Union. Concerns on whether the OCSSPs can fulfill its obligations without having to restrict the right of users that are bolstered by the provisions of Article 17(7) on lawful uses. One way in which the provision could be technically applicable is by ensuring that content gets blocked where the uploaded content wholly or partially matches the corresponding data, which should be provided beforehand. The data should be provided beforehand by the rightsholders pursuant to Article 17(4)(b) on other works or subject matter that are protected under copyright laws.

Furthermore, Article 17(1) of the CDSM Directive provides that OCSSPs should be directly liable for content protected under copyright laws where such content gets uploaded y their users. OCSSPs could avoid liability where it shows that they have made efforts to get authorization, made per industry standards, and acted expeditiously. Therefore, Article 17(7) provides that the users must perform lawful uses that consult the uploaded works and other protected subject matter, including uses that fall within the ambit of limitations or exceptions.

Question Two

Article 17(1) of the DSM directive requires the OCSSCP to gain authorization from the right holders as envisioned under Article 3(1) before using their material. The Article also outlines that where an OCSSP makes available or communicate and publicly, then it would mean that it cannot be able to benefit from the liability expression that was envisioned under Article 14(1) the directive on E-commerce. Article 17 mainly concentrates on the importance of striking a good balance between the limitations and fundamental rights that attach to copyrighted material. Article 15 is more about protecting the press’s publications in an online environment, especially when the member states are expected to protect press publications as set out in a member state with such rights ensuring that information society service providers get protection against unnecessary restrictions when it comes to Copyright. However, Article (1) offers protection to publishers by ensuring that the publishers can receive more compensation than what they are getting by offering them recognition and respecting their copyrights. Article 17 could therefore be implemented in a way that is specifically targeted at dealing with online infringement of Copyright on a commercial scale. The implementation of Article 17 should be done in a proportionate way and under the laws by ensuring that it pursues more legitimate aims that do not violate the rights of individuals. Article 17 requires that specific OCSSPs enter into licensing agreements with the right holders to ensure that they get permission to use their work.

The E-Commerce Directive under review is the primary legislation for intermediary service providers when it comes to the single market. The E-commerce directive is expected to ensure there is more legal certainty to companies and individuals by providing that they are exempted from secondary liability arising from the activities of its users, which are considered unlawful. Therefore, under Article 14, the service providers are exempted from liability where such entities had no actual knowledge of the illegality. Article 15 of the E-commerce Directive also prohibits the courts of the member states from placing an obligation on the service providers to monitor the transmitted information or look for the action of its users that might be termed as being unlawful. Therefore the monitoring envisioned under Article 15 is more of a general character.Recital 47 also similarly allows the member states to require that the services undertake monitoring as an obligation in specific situations.According to Recital 48, such services could also adopt a duty o care to be able to identify any unlawful activities.In Eva Glawischnig-Piesczek v Facebook Ireland Limited, The case outlined that under Article 15 of the Directive on E-Commerce, the duty that extends to cover information did not result in general monitoring duty getting extended to the hosting services.

Thus, under the provisions of Article 17(9) of the CSM directive, the OCSSPs are required to inform their users of the limitations in their terms and conditions of use. Recital 70 of the Directive on CDSM highlights that are legally obligating the member states to perform such obligations is vital to striking a balance between the freedom of art, expression, and IP as allowed under the EU Charter of Fundamental Rights. Even though the recital does not expressly point to Article 15 of the directive, Article 17(8) expressly prohibits the member states from applying the provisions of article 17 in a way that would result in the imposition of general monitoring obligation on the OCSSPs.Therefore for the application of Article 17 to become applicable, then the uploaded filters must be specifically targeted at commercial scale cases to actively respond to the question of online infringement of Copyright.

Question Three

For the adoption of article 17 to be successful, the directive must be treated as being under the law. It pursues a legitimate aim under Article 8(2) ad 10(2) of the Convention. Lastly, the Article must also be evidenced to be proportionate and necessary. The implementation of the European Union Directive on Copyright in the Digital Single Market was to ensure that the right holders are strengthened to enable them to have the upper hand when the negotiation for compensation concerning the use of c their copyrighted material.the ambit of article 17 regulates online content sharing providers by ensuring that they become primarily liable for their users. The striking of a balance under article 17 is complex. Therefore, implementation of the Article would be difficult as the overly broad and strict mechanisms will most likely result in the infringement of the fundamental rights and freedoms of the operators as well as the rights of the users in such platforms. Article 16 of the EU Charter on Fundamental Rights outlines the freedom to conduct a business under the national and union laws and the recognized practices. The provisions of article 16 allow the OCSSPs the right to conduct business with the freedoms that attach. The obligation to filter and monitor the content that could be infringing upon the Copyright of the rightsholder is a huge hindrance it the fundamental rights and freedoms that are expressly protected under the European Convention on Human Rights. In particular, the provisions of Article 17 prevent the uploading of work or content that has not been authorized places the OCSSPs in a challenging position of becoming primarily liable for infringement of Copyright. In the case of SABAM v Netlog,The court outlined the parameters that relate to filtering obligations in the triangular relationship that existed between stakeholders and held that hosting providers cannot be required to put in place systems that filter r monitor information that s stored by the host service provider to be able to avoid cases of infringement either past or present. The CJEU further stresses that implementing a general obligation would be an infringement of the users of the hosting sites. Therefore such a provider fails to strike a balance between the various fundamental test of the OCSSPs. The freedom to conduct business is one of the fundamental economic rights; hence, the protection as enshrined under Article 17 would not strike a fair balance between the rights holders’ property interests and the business interest of the providers.Due to the broad so[e of the freedom to conduct business, it could easily be affected by the regulatory and national intervention measures. Therefore for the application of Article 17 to become effected, it is necessary to ensure that the proportionality test is attained.

The CJEU, in its analysis of the question, has been more lenient in its decisions and allowed restrictions of the freedom to conduct business. In trying to balance between the right to conduct business under article 16 and article 17, the court held that the interference with the business freedom came about because of the obligation to the broadcaster to ensure that access was proportionate.The court also highlighted that the conditions under which the access to exclusive broadcast could be bargained, but other broadcasters were set out under article 15 and did not in any way prevent the right holders from charging fees applicable for access to their content.The court, therefore, is more geared towards the cushioning of the drastic effects of restriction on the freedom to conduct business and places restrictions in cases where it Is necessary and provided that the economic impact of such a move on the service providers is not evidenced to be disproportionate.

Question Four

The Polish government has filed an action to annul Article 17 of the Directive on Copyright in the Digital Single Market Directive. The reason advanced for the move is that the provision places an obligation for specific online platforms to filter uploaded content posted by their users through automated means, which is a direct violation of the freedom of expression. The action for annulment is evidence of the fight to ensure a balanced copyright law is implemented in the European Union.the passing of the CDSM directive was highly contested with strong opposition from Poland among other nations. The aim of article 17 is to address the content industry by according rightsholders an income for the use of their work and restricting unauthorized benefits. Before the introduction of Article 17 came into place, the OCSSPs was protected from liability under the safe harbor regime that was available under the E-Commerce Directive.The polish argues that the OCSSPs are placed at a disadvantage by the requirement of Article 17(40 which outlines that they shall be liable for any unauthorized acts or communications made to the public.

Poland argues that the obligation requires the OCSSPs to filter any uploads that may continue parts of works or the works that afford protection under copyright law infringing upon the freedom of expression of the users of such services. The obligation as outlined would require installing automated mechanisms for filtering and blocking, which is a direct violation of the freedom of expression. Article 11 of the EU Charter provides the right to impart and receive information. Therefore, uploading content even where such content is lawfully covered and protected under the right to information. Users accessing such information would only be exercising their right to receive information.

Some of the procedural safeguards that could get implemented include the use of recognition and filtering systems through various technologies. Some filtering technologies are one of the best possible safeguards that would prevent future uploads that have infringing content. The use of metadata, hashing, watermarking, fingerprinting are just some of the technologies that have been suggested to ensure early detection of material to recognize the specific work protected are not uploaded without the consent of the right holder.

Additionally, arrangements could be made with the right holders to design business instructions on what actions, if taken, would constitute a significant match of their work as envisioned under Article 17. The rightsholder could also design business rules according to the amount of work utilized. Article 17(5) of the CDSM outlines that to satisfy the proportionality test, the existence of an effective and suitable means for OCSSPs must be taken into consideration.

Because the implementation of Article 17 would conflict with the ECHR principles, the first procedural safeguard that could be implemented would be to protect the different works to be set out explicitly, thereby making them accessible to the public. Secondly, another safeguard would be to ensure that the uploaders are informed of their rights about using and gathering their data. Under what circumstances such data would be accessed as outlined under the laws. The uploaders should also exercise their right to rectify and restrict processing and ensure that the profiling of the uploaders is compatible with the legitimate interests test for processing data.


Regulations and legislations

Directive 2000/31/EC, ECD

E-Commerce Directive 2000/31

Recital 47 of the E-Commerce Directive

Case laws

C-401/19-Poland v Parliament and Council

C-401/19-Poland v Parliament and Council

Case C-18/18 Eva GlawischnigPiesczek v Facebook Ireland Limited

Case C-360/10 Sabam v. Netlog

Neij and Sunde Kolmisoppi v. Sweden (dec.) – 40397/12

Books and Articles

Caso R, Giovannella F (eds) (2015) Balancing copyright law in the digital age. Springer, Cham

Geiger, C. and Jütte, B.J., 2021. Platform Liability Under Art. 17 of the Copyright in the Digital Single Market Directive, Automated Filtering and Fundamental Rights: An Impossible Match. GRUR International.

Romero Moreno, F., 2020. ‘Upload filters’ and human rights: implementing Article 17 of the Directive on Copyright in the Digital Single Market. International Review of Law, Computers & Technology, 34(2), pp.153-182.available at 5 May 2021).

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