After that Germany made a long declaration on the occasion of the adoption of the DSM Directive signaling that it would not implement Article 17 of the Directive as adopted, the Discussion Draft published by the German Ministry of Justice for the transposition, inter alia, of the Directive, has not come as a surprise. If the Draft is adopted, the scope of the online content-sharing service providers (OCSSPs) to which the obligations under Article 17 apply will be significantly reduced in comparison with the definition in the Directive; the obligation of OCSSPs to make „best efforts” to obtain authorization from the rightholders as determined in Article 3(1) and (2) of the InfoSoc Directive will be replaced by „every effort” to accept licenses when offered or otherwise are available (that is, practically, zero effort); rights to remuneration will be introduced in contrast with the exclusive rights of authorization to be recognized in accordance with Article 3(1) and (2) of the InfoSoc Directive as clarified in Article 17(1) and (4)(a) of the DSM Directive; the post-blocking complaint and redress mechanism available to users as foreseen in Article 17(9) will be replaced by a post-making-available mechanism that rightholders may use, and so on. However, the notes presented in the Draft go even further by suggesting the theory that, contrary to what is provided in Article 17(1) – namely that the acts performed by OCSSPs are acts of communication and making available to the public and „therefore” they are subject to the authorization of the owners of rights as provided in Article 3(1) and (2) of the InfoSoc Directive – are not covered by Article 3(1) and (2) of the Directive on those rights but by a sui generis right. The paper is mainly devoted to rebut all allegations in detail by which the drafters try to support this theory. It is submitted that the provisions and the notes presented in the Discussion Draft are in conflict not only with Article 17 of the DSM Directive, and not only with the French – German agreement through which both parties have contributed to a compromise to make the adoption of the Directive possible, but also with the InfoSoc Directive, the CJEU case law, the WPO Treaties and probably also with the TRIPs Agreement – in contrast with the French draft law to transpose the Directive which would faithfully transpose Article 17, also in accordance with the French-German compromise, the EU law and the international norms. (The paper was originally uploaded on August 7, 2020. In this version, some minor wording corrections have been made.)

Az írásban foglalt észrevételek csupán három dolgot érintenek a magas szintű törvényhozói munkát tükröző tervezetben. Az első a SatCab Irányelv szerinti, a „közvetlen betáplálásra” vonatkozó rendelkezéseknek az átültetése, a második bizonyos, a DSM Irányelv 17. Cikke (4) bekezdésében említett állítólagosan új típusú kivételeknek (sőt még kivételnek sem számító úgy nevezett „felhasználói jogoknak”) a kezelése az Irányelv 17. Cikke (7) és (9) bekezdésének alapján, a harmadik pedig – az utóbbi kérdéshez is kapcsolódóan – a paródia és a személyhez fűződő jogok összefüggéseinek a szabályozása. Az első két szabályozási kérdés vaskosabbnak és jelentősebb hatásúnak látszik (legalább is, a szerzői jogok tényleges értéke, és különösen a szerzők terhére tátongó „value gap” szűkítése szempontjából), mégis ezekre viszonylag rövidebb észrevételek találhatók az írásban. Az elsőre a SatCab Irányelv említett vonatkozását illetően elsősorban egy, a magyar érdekek (nemcsak szűkebb szerzői jogi, de legalább annyira nyomós kulturális és gazdasági érdekek) szempontjából döntő aspektusra kívánok utalni. A DSM Irányelv említett rendelkezéseit illetően pedig már részletesen kifejtettem álláspontomat – igaz, angol nyelven – egy, az ugyanezen a webhelyen (www.copyrightseesaw) közzétett írásban. Továbbá kifejezetten ezzel a témával foglalkozik egy, az ALAI Végrehajtó Bizottság által létrehozott munkacsoport véleménye is. Az írás ugyanakkor részletesebben foglalkozik a paródia és a személyhez fűződő jogok összefüggéseire vonatkozó szabályozás kérdéseivel.

[This is substantially the same as, but corrected and slightly modified version of, the paper originally uploaded on February 21, 2020] 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; namely the questions of (i) whether or not the authorization to be obtained by the OCSSPs under Article 17(1) of the Directive may also take the form of legal licenses; (ii) whether or not the pre-blocking procedure proposed in the Recommendations would be in accordance with Article 17(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 17(7) read together with Article 17(9) and recital (70) might be understood in a way that a special category of exceptions and limitations has been established as “users’ rights” to be applied „broadly”. The Recommendations have given affirmative answers to the three questions. The paper presents the reasons for which these answers are not well justified. 2) Article 17(1) of the Directive obligates OSSCPs to obtain authorization from the rightsholders. The Recommendations suggest that it may also take the form of statutory licensing. This would be in conflict with the letter, context and objectives of the provision, since it is obviously not an authorization to be obtained from the rightholders and would not be in accordance with the unmistakably clear statement in recital (61): „righsholders should not be obliged to give an authorisation or to conclude a licensing agreement”. 3) Article 17(9) of the Directive provides for an effective and expeditious complaint and redress mechanism available to users in case of preventive blocking by virtue of Article 17(4)(b) and (c). The Recommendations suggest the replacement of this mechanism with a pre-blocking preliminary procedure to be applied by the OCSSPs when their users claim the applicability of exceptions. The works or other protected materials concerned would remain available until the rightholders succeed to prove infringements. According to the Recommendations, Article 17(4)(b) and (c) and (9) might only be applied without the need for such pre-blocking approval procedure where fully complete works or other protected materials are uploaded. The paper points out that, for reducing the scope of „over-blocking”, there is no need for such a solution in conflict with the letter, context and objectives of the provisions of the Directive. The rightsholders may (and certainly will, because the workability of the regulation is in their interests too) give instructions to exclude from the blocking those cases where the probability of exceptions is high (in particular due to the very small volume of the uses). For the identification of such cases, software solutions might also be used. Where still some „over-blocking” happened, de-blocking could be accelerated through due cooperation between the OCSSPs and the rightholders – in the framework of an expeditious complaint and redress mechanism, or even without any complaint – in a way that the freedom of expression would not be prejudiced. 4) Although the second subparagraph of Article 17(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.

In 2017, my website www.copyrightseesaw.net – due to a mistake of the company which maintained it – disappeared from the Internet. It was only in July 2018 that a new company was able to regain the majority of lost data and reconstructed the site. On 26 June 2018, a number of writings previously published were uploaded again (it is the reasons for which this date appears in connection with several papers). This study was not uploaded again. However, before the collapse of the website, it had been made available – in manuscript form – to several colleagues from whom time and again I receive inquiries where it is available as a “quotable” source. Therefore, now I upload it again. It was prepared on 13 December 2016 and offers a review of the interpretation and application of the rights of communication and making available to the public as it stated at that time, with special attention to the case law of the CJEU. Inter alia, it covers the issues of the unfortunate “new public” theory and the Court’s attempts to avoid its untenable consequences from SGAE through TvCatchup to Svensson, with BestWater as an anachronism and with certain corrections in GS Media; the concept of “public”; the problem of introducing commercial gain as a condition and the mixed success to correct the error in the light of the SCF (Del Corso) - Reha Training tandem; the question of so-called online exhaustion dealt with in contra legem manner in UsedSoft and Stichting Leenrecht and correctly in ReDigi; communications where different actors play roles as in the cases of Airfield and SBS Belgium; aspects related to the application of cloud technology offering “one-by-one” access, with reference to Aereo; and the role of online intermediaries as well as “false intermediaries” performing acts of making available to the public and the way this was addressed in the draft Directive of Copyright in the Digital Single Market. The study also contains an overview on how the right of interactive making available to the public has been implemented in various countries.

[This is an updated and modified version of my paper previously uploaded on this website under the title of ‘Tom Kabinet: there is no „online exhaustion” of the right of making available to the public even if it is characterized as distribution (as there is no real “e-lending” either)’. Now the judgement of the 2d Circuit adopted in the meantime is also analyzed, and certain corrections have been made.] In the US, the Appeals Court for the Second Circuit has affirmed the District Court’s decision in ReDigi and rejected the idea of “online exhaustion” of intangible copies of phonograms by finding that, where a copy is transmitted from a computer to the servers of the system and from there to the computer of another member of the public, unauthorized copies are made, and the right of reproduction is infringed (the Court has also found that such acts cannot be qualified as fair use). In contrast, the Court of Justice of the European Union (CJEU), in UsedSoft, introduced “online exhaustion” in those cases where “used” intangible copies of computer programs are transmitted online, and then in VOB found that “e-lending” of books is allowed. The Court applied “teleological” interpretation based on certain legal-political considerations with questionable harmony with the text and “preparatory work” of the relevant international and EU norms. It seemed, however, that the CJEU did not intend to extend “online exhaustion” to works other than computer programs and “e-lending” to works other than books. The optimism of commentators seemed to be justified because, in Allposters – although it concerned tangible copies – on the basis of a thorough analysis of the applicable provisions of the WCT and the Information Society Directive, the Court stated that the doctrine of exhaustion only applies to tangible copies. As the preliminary questions of the Dutch court submitted in the Tom Kabinet case show, the optimism has not turned out to be justified. The court’s questions seem to reflect the position that, if the arguments presented by the CJEU in UsedSoft for “online exhaustion” of computer programs are valid, they may be considered valid also for other works. In the paper, it is pointed out that, although it is possible to characterize interactive online making available to the public of intangible copies as distribution, rental or lending, this does not change the fact that, for the acts concerned, the provisions of the WCT and the Information Society Directive on the rights of (interactive) making available to the public and reproduction apply which do not exhaust. Only the right of distribution exhausts, but it only applies to tangible copies. This is acte clair and – in view of Allposters – also acte éclairé by the CJEU (at least, for works other than computer programs). When the provisions of the WCT and the Directive – which limited the right of distribution, and thus the exhaustion of the right, to tangible copies – were adopted, it had been fully taken into account in what aspects the acts of interactive online making available of works show “equivalence” with communication to the public or distribution. The reference to such “equivalence” does not justify the introduction of “online exhaustion”. The paper suggests that the legal-political objectives pursued by the CJEU in UsedSoft and VOB to make the secondary use of intangible copies possible could be (could have been) achieved more appropriately through the application of exceptions to and/or limitations of the rights of making available to the public and reproduction in certain special cases of the acts characterized by the Court as “distribution” or “lending”, provided that the cumulative criteria of the three-step test are duly fulfilled.