infoJustice

Alexander Peukert, Martin Husovec, Martin Kretschmer, Péter Mezei and João Quintais

Executive Summary
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Copyright law accounts for most content removals from online platforms and search engine result lists, by an order of magnitude. This practice will become subject to numerous due diligence obligations under the proposed Regulation on a Single Market For Digital Services (Digital Services Act, DSA), which also covers copyright infringing content. In this Comment, the European Copyright Society (ECS) takes the opportunity to share its view on (1) the relationship between the EU copyright acquis and the DSA and (2) on further selected aspects of the DSA from a copyright perspective.

The most challenging question regarding the relationship between the DSA and the copyright acquis concerns “online content sharing service providers” (OCSSPs), which are subject to the lex specialis regime of Art. 17 of the Copyright in the Digital Single Market Directive (CDSMD). There are two categories of rules in the DSA that will apply to OCSSPs’ copyright moderation activities, namely DSA rules regulating matters not addressed in Art. 17 CDSMD, and DSA rules on issues that Art. 17 CDSMD touches upon but in relation to which it is not as detailed as the DSA and leaves Members States with a margin of discretion. As an example for the latter scenario, we show that the copyright concept of “a sufficiently substantiated notice” to trigger takedown will arguably be subject to the more specific rules on notice and action mechanisms under Art. 14 DSA.

A critical assessment of selected DSA provisions from the perspective of EU copyright law reveals several issues that deserve attention in the ongoing legislative process:

• The status of search engine providers as addressees of the DSA should be clarified. It is submitted that the DSA should be complemented with tailor-made, medium-level due diligence obligations for search engines.

• The DSA definition of what dissemination of information counts as “public” differs from that of the copyright acquis. To ensure consistency, Art. 2(h) DSA could incorporate the more flexible and functional concept of “public” as developed in the case law of the CJEU concerning the right of communication to the public.

• Regarding the legality of preventive, in particular automated content moderation activities, we call for a consideration of the fundamental rights concerns raised both by the Commission and Advocate General Saugmandsgaard Øe in the context of Art. 17 CDSMD.

• The implementation and enforcement Chapters of the DSA also deserve reconsideration when looked at from a copyright perspective.

• The enforcement provisions of the DSA do not address the interests of all actors involved in a balanced, symmetric way, and we suggest several measures to ensure effective representation of uploaders, inter alia by recognising Trusted Content Creator initiatives as counterparts to Trusted Flaggers (Art. 19 DSA).
• It should be clarified that copyright infringements do not justify a temporary restriction of access to a service under Art. 41(3)(b) DSA.
• We call for a clarification whether the DSA regulates the enforcement of intermediaries’ obligations conclusively or whether a failure of an intermediary to comply with the DSA can trigger private claims on other legal grounds including general tort and unfair competition law.
• Finally, we stress that national authorities with DSA competences need to possess expertise in copyright law, freedom of expression and a comprehensive understanding of creator and user contexts.