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Platform Liability under Article 17 of the Copyright in the Digital Single Market Directive, Automated Filtering and Fundamental Rights: An Impossible Match

^{Christophe Geiger & Bernd Justin��Jütte}

Comments by Pamela Samuelson

^{April 1, 2021 | 11:00am EST | 16:00 UTC}

Under the safe harbour rules of the EU Directive on electronic commerce (E-Commerce Directive), intermediaries in the EU were shielded from liability for acts of their users committed through their services, provided they had no knowledge of it. Twenty years later, the regime for online intermediaries in the EU fundamentally shifted with the adoption of Article 17 CDSM Directive. For a specific class of online intermediaries called “online content-sharing providers” (OCSSPs), uploads of infringing works by their users now result in direct liability and they are required to undertake “best efforts” to obtain authorization for such uploads. This article examines Article 17’s provisions of the EU Charter of Fundamental Rights and the European Convention of Human Rights that are affected by an obligation to monitor and filter for copyright-infringing content. It concludes that the balance between the different fundamental rights in the normative framework of Article 17 CDSM Directive is a very difficult one to strike and that overly strict and broad enforcement mechanisms will most likely constitute an unjustified and disproportionate infringement of the fundamental rights of platform operators as well as of users of such platforms.

^{About the Authors}

Christophe Geiger is Professor of Law and Director

of��the��Research��Department of the Centre for International��Intellectual��Property Studies (CEIPI), University of Strasbourg (France).�� In addition, he is an affiliated senior researcher at the Max Planck Institute for Innovation and Competition in Munich (Germany), He specializes in national, European, international and comparative intellectual property (IP) law.��

Bernd Justin��Jütte��is Assistant Professor��in Intellectual Property at�� the��Sutherland School of Law, University College Dublin. His research focuses on digital aspects of copyright law in the EU, in particular transformative creativity and the role of fundamental rights. He is Deputy Director of the Centre of Common Law in Europe and an adjunct senior lecturer at the University of Luxembourg as well as a Senior Researcher at the Faculty of Law, Vytautas Magnus University.