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
[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.