The Challenge of Balancing Competing Fundamental Rights in Online Enforcement of Copyright: A Study on Copyright in the Digital Single Market Directive

Abstract

With the increasing use of the internet and online platforms, online copyright infringement has become a significant issue for the rightholders, platforms and governments worldwide. To tackle this issue, different jurisdictions adopted different approaches to online copyright enforcement, such as legislative-led, private-led or a combination of these government and voluntary systems, voluntary reactive systems being the most commonly used. However, as the platforms evolved and their services changed from the time that the legislation, such as Digital Millennium Copyright Act in the US and E-Commerce Directive in the EU, a growing need for up-to-date rules that can keep up with the technology has arisen. This triggered the policy reform actions in the EU, which resulted in the Directive on Copyright in the Digital Single Market (CDSMD) in 2019. However, the compatibility of the Directive’s “best efforts” requirements in Article 17 with fundamental rights, namely with Articles 7, 8, 11, 16 and 47 of the Charter of Fundamental Rights of the European Union (Charter), as well as Articles 6, 8 and 10 of European Convention on Human Rights (ECHR), constitutes the most significant concern regarding the new regime that the CDSMD introduces. The purpose of this study is two-fold: Firstly, to critically assess to what extent would the implementation of Article 17 of the CDSMD be compatible with users' right to privacy, data protection, freedom of information and an effective remedy and a fair trial under the Charter and the ECHR; as well as online content-sharing service providers’ (OCSSPs) freedom to conduct a business under Article 16 of the Charter. Secondly, if Article 17 were to violate the Charter and Convention, to suggest and appraise a number of procedural safeguards and possible amendments to ensure Article 17 compatibility with Articles 7, 8, 11, 16 and 47 of the Charter, as well as Articles 6, 8 and 10 of ECHR. Thus, this study examines the incompatibilities of Article 17’s obligations and critically examines the safeguards introduced by the CDSMD to suggest recommendations and procedural safeguards for the national implementations that would ensure the Article’s interference with aforementioned fundamental rights is limited and, therefore, its implementation is fundamental right-compliant.