Article 17 of the CDSM Directive and the Fundamental Rights: Shaping the Future of the Internet
Article 17 of the Directive on Copyright in the Digital Single Market (CDSM Directive) contains filter obligations to prevent future copyright infringements for online content-sharing service providers (OCSSPs). According to the Article, user-generated content must be reviewed by OCSSPs before it can be uploaded and made available to the public to meet the requirement of ‘making best efforts’ set by the Article.
However, with the new copyright Directive, the exception of the liability provided by the safe harbours of the E-Commerce Directive shall no longer apply to the OCSSPs. Combining the inevitability of upload filters with the preventive obligations introduced by this Article, there will likely be strict protection of copyright by the providers by using the ‘upload filters’. Hence, there is a crucial necessity for safeguards against the possible effects of the Article’s obligations on fundamental rights.
This paper discusses the incompatibilities and shortcomings of Article 17 and the adverse outcomes of the implementation of automated content recognition systems on fundamental rights with a focus on freedom of expression. Most importantly, this paper will suggest procedural safeguards to ensure that the upload filters can be implemented in a way, which is compatible with the fundamental rights to fill the gap in the literature.
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