The DSM copyright directive – making slow and unsteady progress

Posted: 03/08/2023

The Digital Single Market (DSM) directive (2019/790) aims to harmonise certain aspects of EU members’ copyright legislation. In addition to providing legal certainty to digital and cross-border uses of copyright protected works, its purpose is to outline key obligations and responsibilities for industry stakeholders.

The route to its implementation has been somewhat difficult. The directive came into force on 6 June 2019, with a deadline for 7 June 2021 for member states to transpose the directive into national law. However, only three members states met this implementation deadline and on 19 May 2022 the European Commission sent a reasoned opinion to multiple member states for failure to implement the directive in full.

The table below shows the implementation stages of member states as at the end of September 2022.

Article 17

One of the more controversial articles, and reasons for the delay in implementation, is Article 17. This states that Online Content Sharing Service Providers (OCSSPs) must engage in effective and proportionate measures to prevent piracy and to conclude fair and balanced licensing agreements with any requesting rights holder. The article has gathered considerable criticism from all sides, shifting the burden on monitoring for infringing content from copyright owners to OCSSPs.

There are three primary obligations for OCSSPs set out under Article 17. These are to use best efforts:

• to obtain licences from copyright owners for content appearing on their sites;
• to ensure the unavailability of specific works; and
• to ensure that content previously subject to a takedown notice is blocked from being uploaded in the future.

On 4 June 2021 the European Commission published guidance on the application of Article 17, largely addressing the cooperation between OCSSPs and rights holders. This was principally to combat the different approaches taken by member states in the implementation of Article 17.

The three approaches to implementation

The largest group of member states chose to restate the provision in their national laws. The issues with this implementation method mirror those contained in the article itself. This is because whilst the legislation contains general principles, it fails to provide concrete guidance on how to implement the obligations. As a result, it leaves substantial room for manoeuvre to the platforms falling within the scope of the article.

Another group of member states, including Germany and Austria, have chosen to adopt an approach whereby there are substantive ex-ante (before the event) safeguards against over blocking of legitimate content in their national implementation. On the opposite side of this, a further group has included provisions that require all disputes about blocking to be resolved ex-post, prioritising the interests of rights holders over freedom of expression of users. The latter member states have included additional provisions that require platforms to ensure that uploads where users dispute an automated blocking request remain unavailable until the resolution of complaints.

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