Il est plus qu'un bémol; das ist eine völlig andere Music: comments on a resolution adopted by a group of European academics to suggest a special way of implementing Article 17 of the DSM Directive
1) The paper, of the great number of issues of interpretation of the provisions of Article 17 of the DSM Directive, only deals with three, mainly in reaction to a Recommendation adopted by a group of European academics (with whom other European academics do not necessarily agree); namely the questions of (i) whether or not the authorization to be obtained by the OCSSPs under Article 7(1) of the Directive may also take the form legal licenses; (ii) whether or not the pre-blocking procedure proposed in the Recommendations would be in accordance with Article 7(9) of the Directive providing for a post-blocking effective and expeditious complaint and redress mechanism, and (iii) whether or not the second subparagraph of Article 7 read together with Article 7(9) and recital (70) – and also taking into account the relevant norms of the Information Directive -- might be understood in a way that a special category of exceptions and limitations is established as “users’ rights” to be applied broadly. 2) In the paper, reference is made to those aspects of the Recommendations which are in accordance with the EU norms and the international treaties and also to those which may be usefully applied for the implementation of Article 17 of the Directive, but it suggest negative answers to the three questions mentioned in point 1) above, for the following reasons. 3) Article 7(1) of the Directive obligates OSSCPs to obtain authorization from the rightsholders for the use of works and related rights uploaded by their users and made available to the public. The Recommendations rightly note that the authorization in addition to direct licensing, mentioned in the provision as an example, may also take the form of collective licensing. In contrast, the thesis of the Recommendations according to which authorization may also be granted through statutory licensing is not in accordance with the text and the objectives of the provision of Article 7(1). Authorization by or on behalf of rightholders means authorization by or on behalf of rightsholders; statutory licensing is not authorization by or on behalf of rightsholders. 4) Article 7(9) of the DSM Directive provides for an effective and expeditious complaint and redress mechanism for users of OCSSPs in relation to their uploads to which access has been disabled or that has been removed – and not for a pre-blocking preliminary procedure to be carried out by the OCSSPs as suggested in the Recommendations to clarify whether or not OCSSPs are “allowed” to disable access to, or remove, uploads as provided in Article 7(4)(b) and (c). The Recommendations correctly point out that it would be justified to avoid the blocking of uploads that quite clearly are covered by exceptions mentioned in Article 7(4)(b) and (c). For this, however, the right solution would be due cooperation between OCSSPs and rightsholders and certain agreements or MoUs for this purpose (as foreseen in the Directive) and not the transformation of the post-blocking complaint and redress mechanism provided in Article 7(10) into the contrary; into a pre-blocking procedure. 5) Although the second subparagraph of Article 7(7) of the DSM Directive makes the application of certain exceptions mandatory, it does not introduce a new category of “users’ rights” to be applied “broadly”; those exceptions, as any others, are to be applied in a balanced way neither broadly nor narrowly as required by the three-step test.