Art. 17 DSMCD a Class of Its Own? How to Implement Art. 17 Into the Existing National Copyright Acts – Also a Comment on the Recent German Discussion Draft

Abstract

Art. 17 of the DSMCD is a complex provision, the exact systematic classification of which does not seem to have been extensively researched yet. This article highlights in particular the tension between Art. 17 of the DSMCD and Art. 3 of the InfoSoc Directive. This tension arises as Art. 3 of the InfoSoc Directive provides for a similar provision under the current law by establishing the liability of service providers as perpetrators in case of a communication to the public. The authors also shed light on the significance of the requests for a preliminary ruling of the CJEU in the cases YouTube and Uploaded for Art. 17 of the DSMCD. They also propose how and where to implement Art. 17 DSMCD into the existing national copyright acts. The recent German Discussion Draft to implement Art. 17 is critically assessed.

Keywords: Article 17 DSM Directive, liability, duties, OCSSP, online content sharing service provider, German discussion draft, sui generis, Article 3 InfoSoc Directive, YouTube, Uploaded