To Filter or Not To Filter? That is the Question in EU Copyright Reform

This article discusses the proposed introduction in EU law of an obligation for hosting providers to conclude licencing agreements with copyright holders and ensure they are taking effective technological measures, such as Content ID technologies, to prevent copyright infringement on online platforms. This proposal is included in Article 13 and accompanying Recitals of the European Commission's Draft Directive on Copyright in the Digital Single Market of September 14, 2016, which forms an important part of the ongoing EU copyright reform. This article highlights the shortcomings of this proposed reform, which may fall short in terms of clarity, consistency with the EU acquis, appropriacy and proportionality. In doing so, the article discusses recent CJEU case law, such as GSMedia, Ziggo and Filmspeler, which all struggle with the notion of communication to the public in the digital environment.

The case law highlights systemic inconsistencies between the traditional knowledge-and-take-down, negligence-based intermediary liability system and the introduction of filtering and monitoring obligations. The article examines the appropriacy offiltering and monitoring measures within a fundamental rights perspective by considering proportionality between property rights' enforcement and competing fundamental rights, such as freedom of expression, and freedom of business and privacy. The critical review of the proposed reform serves as an opportunity to briefly advance an alternative proposal seeking a more pragmatic engagement with technological change through an arrangement enforcing a liability rule or an apportionment of profits and producing value for creators out of platform economy's virality, while limiting negative externalities on users' rights.