Yet the recent passage of the Directive on Copyright in the Digital Single Market (CDSM Directive) seems to demonstrate a move away from the goal of harmonization by creating new obligations (and a new right) with the potential to further fracture the current system. Given the potential for many different Member State interpretations of some critical provisions of the Directive, academics have even pointed out its incongruity with the legal basis used to pass it. The unclear requirements of certain provisions of the Directive has further led to a legal challenge raised in the CJEU on behalf of the Polish government.

Past experience with “harmonizing” instruments in the area of copyright reveal a similar outcome. The CDSM Directive was borne out of a need to revisit the preceding “horizontal” EU legislative measure on copyright, the 2001 Information Society Directive (InfoSoc Directive). Again, copyright harmonization efforts in the EU have been justified by the need to improve the functioning of the Internal Market, and this also served as the legal basis for the InfoSoc Directive. However, during passage of the InfoSoc Directive, objectives centered on adapting EU laws to international norms embodied in the “WIPO Internet Treaties,” as well as addressing the use and application of new technologies in relation to copyright enforcement. As such, the harmonization objective was only partially realized, leaving a difficult and lengthy implementation process in its wake. Years after, it still cannot be said that there is a single, coherent concept of an “EU copyright.”

The core issue is that, by design, the open drafting of Directives leaves significant room for Member States to domestically adapt their copyright laws, opening the door to multiple coinciding regulatory approaches applied and enforced on a territorial basis. In other words, without a means for coordinating a consistent approach to the regulation and enforcement of copyright in the EU, significant transaction and informational costs will continue to disrupt the creative market.

One of the most debated provisions of the CDSM Directive has been Article 17, titled “Use of protected content by online content-sharing service providers” (OCSSPs). To sum up its purpose, Art. 17 alters the previous liability standard for certain large-scale for-profit online content sharing services, making them directly liable for the copyright infringements of its users unless they can meet certain criteria to avoid liability (Art. 17(4)).

In order to fulfill the requirements for avoiding infringement liability under this regime, OCSSPs will necessarily need to apply some form of algorithmic blocking measures and filtering technologies to ensure that infringing material does not make it onto its platform in the first place, and does not appear afterwards. However, algorithms are still not consistent nor predictable at identifying infringements, nor in recognizing lawful uses due to the presence of an exception or limitation. Crucially, articulating a legal standard which enables OCSSPs to rely heavily on the use of algorithmic filtering technologies may incentivize OCSSPs to “overblock” content, which academics and lawyers have already identified as a real threat to user freedoms and fundamental rights.

This approach to regulating the use and dissemination of creative content online generally reflects the EU legislator’s reliance on private ordering, granting most of the power to design a fundamental-rights compliant system to the platforms themselves. Ensuring the availability of adequate user redress mechanisms also falls within the platforms’ discretion, giving platforms significant authority in deciding infringement cases which may be “borderline,” or involve the application of an exception or limitation to copyright. And again, given the open drafting of the Directive, Member States may themselves articulate varying standards on what constitutes “best efforts” under Art. 17(4), or what constitutes an “effective and expeditious” complaint and redress mechanism available to users under Art. 17(9), as just a few examples.  

But there is still an implementation tool worth considering, which shifts the reliance on private ordering towards oversight by a public regulatory actor. It has recently been suggested that introducing an independent, institutional intermediary at the EU level may help to safeguard the rights of users, as well as articulate guidelines and best practices for OCSSPs to comply with their new obligations under Art. 17. This option may help to enhance OCSSP accountability in the design of their enforcement schemes and user redress mechanisms, as well as provide an additional safeguard for fundamental rights that extends beyond the authority of the platforms. Above all, installing an EU-level institutional actor would provide an important avenue for centralizing some functions such as monitoring the overall effects of OCSSP practices on EU rightsholders and users, and can further help to coordinate the approaches adopted by Member States. It is noteworthy that a similar discussion is currently taking place in the context of the forthcoming, broader-in-scope Digital Services Act.

In a digital age, it becomes necessary to look beyond the current regulatory paradigm towards arrangements which might better encourage accountability on behalf of online intermediaries, as well as inspire greater levels of cooperation between Member States. Time will tell whether the EU legislator will agree with shifting away from the reliance on private ordering in lieu of more public regulation, guided by an EU-level institutional actor. The distinguishing advantage of the latter is a greater level of transparency, exposing the practices of online intermediaries to the light of day. Perhaps what began as a question of regulatory design may boil down to a question of trust and where we place it: in the hands of private actors, or in a public institution?