Social Structures
Author: Péter Mezei, Associate Professor of Law, University of Szeged, Faculty of Law and Political Sciences; adjunct professor (dosentti), University of Turku, Faculty of Law
Most of the European Union (EU) legislation on platforms was introduced in a period that we currently call “web 1.0”. During the early years of the internet, websites offered “read only” experience, rather than interactivity and user engagement. The early legislative acts in the USA and the EU have contributed to the emergence of brand-new business models. The platformisation – based on the safe harbours granted for (certain) service providers – has generated a brand new (“read/write”) internet culture, something we refer to as “web 2.0”. For a while, social media’s contribution to modern society was hailed as the new democratisation of life, but those sentiments have since then gone, partially due to platforms’ excessive content moderation practices.
Web 2.0 – coupled with rogue websites’ contribution to illegal end-user activities – have sparked criticism on a global scale. It took many years in Europe to come up with the necessary solutions to mitigate the negative consequences of the platform age. One of the magic keywords for these reforms was the so-called “value gap”, that is, the claim that platforms’ benefits from end-users’ activities is disproportionately greater than the fees they pay to rights holders. Furthermore, as data has become the “oil of our age”, an urgent need has arisen to regulate the collection, management and utility of information.
Although platforms shall obey different types of laws, a holistic legislative approach would be the best method. However, this is far from being realised in the EU. Based on the limited competences of the EU, its legislative history, and the politically controversial nature of the platform age, it is unsurprising that the norms on this subject are fragmented. Certain aspects of platforms were regulated/harmonised in recent years (from portability through copyright to consumer protection law); and another norm is on the horizon. The proposal of the Digital Services Act (DSA) was published on December 15, 2020; and the amended proposal was published in November 2021.
The DSA plans to amend the significantly outdated EU e-commerce law, or as the DSA itself states, it “seeks to ensure the best conditions for the provision of innovative digital services in the internal market, to contribute to online safety and the protection of fundamental rights, and to set a robust and durable governance structure for the effective supervision of providers of intermediary services”. As a part of that, it intends to touch upon topics that have direct relevance in the copyright arcade as well. Indeed, it shall be analysed whether DSA’s new due diligence obligations are in compliance with the existing rules on tackling copyright infringements under the Copyright in the Single Market Directive (CDSMD). In sum, it is of great relevance, how the new DSA would comply with the CDSMD.
The two norms have significant overlaps. The enforcement of rights (including copyrights) in the online environment is one – if not the most important – of such common elements. While the lex specialis rules of the CDSMD target certain platforms (“online content sharing service providers” or OCSSPs), the DSA aims to apply to all e-commerce service providers (including OCSSPs, and with certain notable extras for platforms that qualify as “very large online platforms”). The relationship between the EU copyright acquis and the DSA prompted the European Copyright Society (ECS) to draft an Opinion on certain copyright-relevant aspects of the DSA.
The Opinion argued that “[t]here are two categories of rules in the DSA that will apply to OCSSPs’ copyright moderation activities, namely DSA rules regulating matters not addressed in Art. 17 CDSMD, and DSA rules on issues that Art. 17 CDSMD touches upon but in relation to which it is not as detailed as the DSA and leaves Members States with a margin of discretion.” Article 14 DSA on the notice and action system, especially its “sufficiently substantiated notice” element is an excellent example for the second group of issues.
It is of crucial importance, too,
- to clarify the due diligence obligations of search engine providers (a new group of intermediaries, who were not discussed by the E-Commerce Directive, but have significance in the copyright arcade);
- the meaning of “public” under the DSA (the notion of “public” has played a central role in groundbreaking preliminary rulings of the Court of Justice of the European Union on the “communication to the public” right, also in digital – platform-relevant – copyright cases); or
- the legality of ex ante – especially automated – content moderation practices (which was one of the key concerns related to the “constitutionality” of Article 17 CDSM Directive as well, culminating in Case C-401/19 – Poland v. European Commission).
Furthermore, the Opinion argued that “the enforcement provisions of the DSA do not address the interests of all actors involved in a balanced, symmetric way”. Uploaders’ interests are especially overlooked during the DSA’s drafting phase so far (which is a notable concern in light of the CDSMD’s focus on respecting the “user rights” of uploaders to OCSSPs). These considerations, coupled with several further issues discussed in the Opinion, were expressed in the hope of impacting the final drafting phase of the DSA and to reach a coherent legislative framework and evade any future clash of distinct legal sources.
The original version of the Opinion, written by Alexander Peukert, Martin Kretschmer, Martin Husovec, João Pedro Quintais and the author of the present blog post, Péter Mezei, is available via ECS’s website, and it has been accepted for publication in the International Review of Intellectual Property and Competition Law (IIC). The open-access version of the pre-print edited Opinion is available here. Various further aspects of the DSA/CDSM overlap have been discussed by members of Work Package 6 of the ReCreating Europe project (including João Pedro Quintais and Péter Mezei from the authors of the ECS Opinion). These aspects play an important role in the normative, comparative and empirical analysis of the regulation of platforms and the content moderation practices of platforms. (On the DSA/CDSM overlaps, you might also consult the recent publication of ReCreating team members João Pedro Quintais and Sebastian Felix Schwemer.)