Digital Copyright Enforcement after Article 17 DSMD: Platform Liability between Privacy, Property and Subjective Access Rights

Zeitschrift für Geistiges Eigentum | Intellectual Property Journal 4 (2022)

34 Pages Posted: 25 Jan 2023

See all articles by Guido Westkamp

Guido Westkamp

Queen Mary Intellectual Property Research Institute

Date Written: December 3, 2022

Abstract

The German legislator has implemented Article 17 of the Directive on Copyright in the Digital Single Market, concerning platform liability for infringements committed by users, in a remarkable and innovative manner. The legislative objective, it appears, is to promote creativity and access to culture on platforms. The central mechanism to achieve that objective is twofold – a general licensing solution to pay authors for uses such as for the purpose of pastiche or parody, and a “stay up” mechanism allowing users to flag content as permitted. The German approach broadly marginalises the copyright industries’ – rather than authors’ – economic interests. Users will therefore face the likely prospect of targeted and strategic enforcement. That prospect of costly litigation will, obviously, cause a chilling effect on users’ motivation to upload content falling within the remit of referential and transformative uses. The key to successfully achieving a dissuasive effect lies in demanding the disclosure of user data. German copyright law permits such claims rather generously. This contribution explores the relationship between continued rights to claim the handing over of user data – as a prime example of a central legal tool reflecting the overall predominance of a cemented property logic – with the broader legislative objective. Both concepts – promotion versus dissuasion of creative reuses – are obviously incompatible, but courts cannot simply dismiss such claims. To reach a doctrinal sound conclusion, the article considers the emergence of an enforceable access right, anchored in fundamental rights and proportionality, as a central mechanism to permit courts to achieve such conclusion. It will be shown, however, that a laborious exegesis is required in this respect, and that economic privileges grounded in EU primary and secondary law may place significant obstacles towards recognising such access right.

Keywords: copyright, data protection, disclosure of user data, platform liability

Suggested Citation

Westkamp, Guido, Digital Copyright Enforcement after Article 17 DSMD: Platform Liability between Privacy, Property and Subjective Access Rights (December 3, 2022). Zeitschrift für Geistiges Eigentum | Intellectual Property Journal 4 (2022), Available at SSRN: https://ssrn.com/abstract=4336113 or http://dx.doi.org/10.2139/ssrn.4336113

Guido Westkamp (Contact Author)

Queen Mary Intellectual Property Research Institute ( email )

67-69 Lincoln's Inn Fields
London, WC1A 3JB
United Kingdom

HOME PAGE: http://www.law.qmul.ac.uk/staff/westkamp.html

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