Guido Westkamp

Digital Copyright Enforcement after Article 17 DSMD

Platform Liability between Privacy, Property and Subjective Access Rights

Volume 14 () / Issue 4, pp. 400-446 (47)
Published 27.01.2023

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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 doctrinally 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.

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