The future of Czech copyright law in light of DSM directive (part II)

Source: epravo.cz

Author: JUDr. Josef Donát, LL.M.

In the first part of my article on the future of Czech copyright law in light of the DSM Directive, I dealt primarily with the background to the adoption of the final form of the DSM Directive, which (unfortunately) is negatively reflected in the current transposition efforts of individual Member States (which is also true of the Czech draft) and will also bring subsequent application problems in practice. In particular, the first part focused on the much-discussed rights of publishers of printed publications, but also on exceptions for the exploitation of texts and data, exceptions for the use of protected subject matter in educational activities and exceptions for the acquisition of copies of works for cultural heritage institutions (all in light of the Czech draft transposition law, which – hopefully – will undergo further changes).

This second part of the article builds on the above, focusing in particular on another controversial provision of the DSM Directive, namely Article 17, which brings about a change in the liability model of online platforms regarding the use of user content. Article 17 is, along with Article 15, probably the most debated provision of the entire DSM Directive, and is particularly controversial due to the considerable ambiguities that resulted from the need to find a compromise in order to adopt the Directive at all. Unfortunately, one of the main objectives of the DSM Directive, to provide greater legal certainty, is more wishful thinking than reality.

In the context of Article 17, we cannot forget the recently issued European Commission Guidelines, which were intended to provide guidance to Member States on how to deal with the difficult task of transposition. Nor can we overlook the opinion of the Advocate General of the Court of Justice of the European Union on the Polish motion to invalidate Article 17 of the DSM Directive, which provided further insight into this complicated issue.

However, the DSM Directive is not just about the controversial Articles 15 and 17. Last but not least, therefore, the article focuses on the “bestseller fee” and the transparency obligation, which have been overshadowed by the controversial Articles 15 and 17, even though in practice they may affect a wider range of subjects.

Rewards for successful authors

If you are an author and you write a novel, Article 20 of the DSM Directive ensures that you will not come up short after the novel becomes a bestseller. In fact, the Directive introduces at European Union level a “bestseller fee” to which any author and performer, whose initially agreed remuneration appears to have become disproportionately low compared to the subsequent income from the use of the subject matter, is entitled. Income from the sale of derivative products should also be included in the calculation of income from the subject-matter, [1] reflecting today’s reality. A particular cultural intellectual creation may lead to the birth of a brand, which may ultimately generate more revenue than the initial creation itself (in particular through the sale of merchandise or related licensing).

Although bestseller fees are not a new institution in Czech copyright law per se, the regulation under Article 20 of the DSM Directive is broader and therefore the proposed Czech transposition specifically proposes an amendment to Section 2374 of the Civil Code. Until now, it has only been possible to claim bestseller fees in cases where remuneration for the granting of licenses was not agreed in relation to revenues from the use of such licenses (but this was typically a fixed amount). The transposed law would introduce the possibility of claiming fair remuneration even in cases where remuneration was agreed as a proportion of the revenue but the proportion was unreasonably low. The right to additional remuneration will not be excluded or limited (even if the author has expressly waived it). [2]

This regulation thus provides a desirable strengthening of the rights of authors themselves – creators who are usually (especially at the beginning of their careers) in a significantly weaker position to publishers. Thus, authors (i.e. the actual creators) often fail to negotiate appropriate and fair terms – especially in cases where there is completely unexpected success (J.K. Rowling could for instance talk about the unforeseen popularity of Harry Potter). A well-known case in which a claim for additional remuneration was made is the dispute of Andrzej Sapkowski, the author of the Witcher saga, who granted an overly broad license to the game studio CD Projekt Red, for a fixed sum, not based on (a share of) revenue. In his own words, the author did not believe in the success of the game series, which turned out to be a fundamental mistake. Sapkowski subsequently sought over $16 million, and the dispute was eventually settled out of court. [3]

In view of the already existing, albeit narrower, regulation in Czech copyright law, one cannot fully expect a flood of new demands from authors for additional remuneration under the new legislation. However, it is beneficial to open up the possibility to remedy possibly low share-based remuneration and, above all, to introduce this right across the European Union.

However, computer programmers will still need to be careful about remuneration arrangements, as the right to additional remuneration will not apply (in light of Article 23(2) of the DSM Directive) to computer programs. [4]

How are my licensed intellectual creations used?

The DSM Directive also introduces a new transparency obligation for licensees. They will now be obliged to inform authors and performers regularly, at least once a year, and in full, about the use of their subject matter. Article 19 of the DSM Directive places particular emphasis on information on the use of work, any revenue generated by the work and the remuneration due to authors and performers. Sub-licensees also have the same information obligation.

This obligation is reflected in the proposed amendment to the Czech Civil Code, which requires the provision of regular (at least once a year) up-to-date, relevant and complete information on the use of copyrighted work in the case of a license for remuneration. [5] From a practical point of view, it is significant that, in line with the Directive, general corrective measures are proposed to prevent the inadequacy of this information obligation. Indeed, if the provision of information would be disproportionate, the licensee is to provide information on the use of the copyrighted work of at least the type and level of detail that can reasonably be expected in such a case – which, although vague, will in practice allow for the specific circumstances to be taken into account, given the breadth of situations and relationships to which the right of transparency will apply. If the author’s contribution to the work as a whole is not significant, the author can only request information if the author can show that he/she requires the information in order to exercise the right to additional remuneration. [6] The purpose of the new regulation is thus clear – to strengthen the position of authors not only by introducing the right to additional remuneration, but also by providing sufficient grounds for exercising this right.

This right cannot be excluded or limited (even if the author has expressly waived it). [7]

Here again, the Czech proposal does not grant this right in the case of computer programs [8] (again in accordance with Article 23(2) of the DSM Directive), which is good in view of the practical aspects of software licensing. The opposite case would lead to a significant and unnecessary administrative burden.

Article 17 – New liability regime for online user content services

Another highly controversial provision of the DSM Directive, on which much has already been said and written, is undoubtedly Article 17. By definition, this applies to information society service providers whose main purpose or one of whose main purposes is to store a large number of copyright works or other subject matter uploaded by their users and to make them available to the public, where the provider arranges and promotes these works and other subject matter for profit. [9] As this is a broad definition that would even apply to service providers to which it would not be appropriate to apply, the definition also includes a list of sample services that are not to be covered by the new regulation. [10] While these are desirable exceptions, they are not based on a cohesive concept – their introduction was not the result of detailed deliberation but an attempt to reach a compromise in order to get the DSM Directive adopted in the first place. Thus, if some examples during the adoption of the DSM Directive illustrated the absurdity of the proposed regulation, an ad hoc exemption was proposed for these types of services.

The core of Article 17 of the DSM Directive is to ensure that online content sharing service providers communicate [the existence of copyright?] to the public (i.e. a copyright of relevant use) when they provide public access to copyrighted works or other subject matter uploaded by their users. For such use, the online content sharing service provider needs to obtain permission from the rights holder (typically by entering into a license agreement). [11] The permission should also cover the conduct of the user (unless the user is acting in the course of business and the activity does not generate significant revenue). [12]

Thus, although the uploading of content is done by the user, who is primarily responsible for this act, in the case of providers who fall within the definition of online content sharing service providers, they are also responsible for the content uploaded by the user, although this may not have been the case under the previous legislation. For these purposes (but not others), the existing exclusion of liability of information society services (specifically, so-called hosting services) for the content of information uploaded by the user [13] – the so-called safe harbor [14] – is expressly excluded. Thus, in the context of the new legislation, it will no longer be decisive for the providers concerned whether they had any knowledge of the illegality of the uploading user’s conduct.

The new Article 17 safe harbor

As the rule would otherwise lead to the liquidation of many digital platforms, the DSM Directive thus allows the possibility for a provider of online content sharing to be exempted from liability under certain strict conditions even in the context of the new legislation (say, a “safe harbor 2.0”). However, the provider must prove that:

(i) it made every effort to obtain permission,

(ii) it made every effort, in accordance with the high industry standards of professional care, to ensure the unavailability of specific works and other subject matter about which rights holders have provided relevant and necessary information and, in any event,

(iii) as soon as it has received sufficiently substantiated notification from rights holders, it has disabled access to or removed notified works or other subject matter from its website and has made every effort to prevent its future uploading in accordance with the preceding paragraph. [15]

It is clear from the last point that, in any event, there is a shift from the existing notice and takedown regime (where the platform is obliged to remove infringing content primarily on the basis of a report received) to a notice and staydown regime (where the platform must additionally ensure the unavailability of such content in the future, in case of re-uploading efforts).

The second point then applies to the situation where there has not yet been a report of specific infringing content uploaded by a user, but the relevant rights holder provides the platform with relevant and necessary information in advance to prevent such content from being made available to the public (e.g. in advance of a world premiere). Inevitably, both points are aimed at filtering (blocking) uploaded content, and not solely on the basis of specific reports, which is the fundamental controversy of the whole provision.

The first point (i.e. making every effort to obtain permission) may thus appear to be the least problematic of the trio, but in my view even this point is not entirely without issues. First of all, there is the question of how an online content sharing provider is supposed to know who all to approach in order to negotiate permission (a license) and for which works it is supposed to seek such permission. How is it actually supposed to do this without exercising general supervision over all the content of the service (which cannot be its duty)? Another problem I see is that the provision in question seems to assume that every platform will have an interest in all possible protected content. However, in my view, such a contractual obligation was not the purpose of the regulation and cannot be inferred indirectly. The free choice of platforms (and especially those that are not in a dominant position) as to the focus of the content of their service should be preserved.*

The above conditions for the exclusion of liability, precisely because they are strict to the point of being unrealistic, are significantly curbed in the other provisions of Article 17. Thus, they cannot be interpreted in isolation and without regard to the safeguards which are enshrined in the other paragraphs of Article 17. In particular, the principle of proportionality must always be applied, taking into account, inter alia:

(a) the nature and scope of the services, their target audience and the type of works and other subject matter uploaded by the users of the service; and

(b) the availability of appropriate and effective means and their cost to the service provider.

The ‘best endeavors’ obligation will therefore vary from one operator to the next. It should be borne foremost in mind that the legislation in question was primarily written to fall safely on the shoulders of the largest, global services (e.g. YouTube, Facebook, Instagram, TikTok), which already have some advanced and costly technologies (a typical example is the Content ID tool on YouTube, which cost over USD 100 million to develop [16] – and yet is not perfect), and could serve as better leverage against these giants. However, given the breadth of the definition, the new regulation will affect a number of entities – most of which will be small entities in the optics of the European Digital Single Market. It cannot be concluded that the practices of small players should be compared specifically with those of giants such as YouTube or Facebook.

Article 17 of the DSM Directive adds further safeguards (and a de facto softening of the obligations set out in its paragraph 17.4) – a prohibition on general surveillance; [17] a prohibition on restricting the availability of works or other subject matter uploaded by users that does not infringe copyright and related rights, including where such works or other subject matter is covered by an exception or restriction; [18] ensuring that users can take advantage of the caricature, parody, or pastiche exceptions when uploading and making available content created by them, as well as quotation, criticism, and review. [19]

There is also an exemption for small and start-up services. [20] Unfortunately though, it is so restrictive that it will have little practical use. This is mainly due to the time limitation, where the exemption is only applicable to services that have been available to the public in the EU for less than 3 years. In short, by the time the service gets off the ground, the provider will already have to start working on putting appropriate measures in place, even though it will easily meet the other criteria of the exemption, namely the turnover criterion (annual turnover of less than EUR 10 million) or the number of users criterion (average monthly traffic exceeding[below?] 5 million), which are more benevolent and realistic.

Due to the obligation of the platform to disable access to works upon receipt of a sufficiently substantiated notification or relevant and necessary information from rights holders – and the need to provide the above safeguards – online content sharing service providers must put in place mechanisms to handle complaints and seek redress. [21] Importantly, the online content sharing provider must not disable access to non-infringing works. Any complaint of copyright infringement must therefore, as required by the DSM Directive, be properly investigated by a human, not automatically, and resolved as soon as possible. At the same time, however, rights holders have an obligation to properly substantiate their requests. A request that is not duly substantiated will probably be ignored.

It is clear from this construction (and in view of the course of the legislative process in adopting the DSM Directive and the successive wrapping up of the individual provisions) that the European legislator did not have a sufficiently clear idea of exactly how the intended legislation should be set up so as to ensure a fair balance in practice between the fundamental rights and freedoms of rights holders, platforms and their users. The need to reach a hard compromise has thus resulted in a regulation that places the responsibility for finding this on Member States. As already indicated in the previous section, the latter are certainly not in an easy situation, which is why they often (also for the sake of trying to ensure a uniform interpretation) unfortunately merely transpose the wording of Article 17 of the DSM Directive into their own legal systems without having any clear idea of the implications of what is at stake and the real application. As I pointed out in the first part of the article, when the Czech draft transposition law was being prepared, the possible effects of the proposed regulation were not actually ascertained (and therefore not even assessed).

However, there are insufficient answers or guidance on the specific and purely practical questions that content sharing service providers need to find answers to before the national transposition legislation comes into force. What measures and tools should they put in place? Where is the real threshold so that such measures are not cripplingly costly for them, but at the same time they are not accused of not having made ‘every effort’? How is the objective of Article 17 to be met, i.e. to ensure the unavailability of unauthorized disclosures, but without jeopardizing legitimate user use (e.g. parody), which requires a sophisticated assessment that cannot be replaced by automated tools, but is at the same time unrealistic (given the volume of user data) for a human to carry out in every case? What is the specific difference between the demands placed on YouTube, on the leading local service in Germany (i.e. the most populous EU country), on its local competitor, on the leading Czech service and on its local competitor? Exactly what information, and to what extent and quality, should rights holders provide information to platforms in order to enable them to make the necessary efforts to make specific subject matter unavailable?

Ultimately, this leads to the worst case scenario – the responsibility for striking a fair balance is placed squarely on the shoulders of ISPs, and only as future practice reveals. However, the direct responsibility of these providers will already be imposed, i.e. the rules will effectively be made up as they go along. I believe that this situation is on the fringes of the requirements of the democratic rule of law, as regards legal certainty. In my opinion, the legal uncertainty of the addressees of legal rules from public authorities cannot be assuaged by the argument that they should rather spend more than actually obliged in order to be genuinely safe.

However, since Member States will not transpose the regulation in question uniformly, not least in view of the vagueness of Article 17 of the DSM Directive, there will inevitably be differences between Member States’ digital markets (where the regulation will be stricter or more lenient). This is contrary to the main purpose of the DSM Directive to ensure a single digital market, and may result both in limiting the availability of certain services for some Member States and in the liquidation of local services which may become uncompetitive for European expansion, as their foreign competitors will have more favorable starting conditions in their local market.

Czech proposal for Article 17 – less is more

As far as the Czech draft transposition law is concerned, it can be stated that, with a few exceptions, the Czech draft chooses a literal transposition of the text of Article 17 of the DSM Directive into national law – i.e. without excessive creativity, but also without providing clear guidance and answers to the subjects concerned.

In the definition of “provider of online sharing services”, consideration of whether the service “competes or may compete with other online services making works available to the same target group” is also embedded beyond the scope of Article 17. [22] Although this addition can be seen to be inspired by Recital 62 of the DSM Directive, it ultimately broadens the definition (even beyond the aforementioned non-binding Recital 62), as the notion of “may compete” is indeed very broad and vague. This small part of the definition, added at the initiative of the Legislative Council of the Government, should, in my view, be deleted in order not to increase the already great uncertainty regarding the application of the new regulation under Article 17 of the DSM Directive. On the positive side, however, the Czech proposal also explicitly includes a negative definition (exceptions) of “provider of an online sharing service” under Article 2(6) of the DSM Directive (e.g. non-profit online encyclopedias). [23] During the drafting of the Czech proposal, it was not at all certain whether this part of the DSM Directive, which was intended to enhance legal certainty at least for the types of services mentioned, would actually be explicitly adopted.

However, I consider the absence of an explicit guarantee of the prohibition of general supervision, as enshrined in Article 17(8) of the DSM Directive, to be a major shortcoming. Although the Ministry of Culture (as the proposer of the proposal) never disputed this guarantee, it considered it superfluous to expressly enshrine it (and thus only mentioned it in the explanatory memorandum). In view of the importance of this guarantee, without the explicit expression of which the DSM Directive would probably never have been adopted, and the concerns that the application of the new legislation may raise in this context, in my opinion, the explicit inclusion of a guarantee against general surveillance is entirely appropriate.

The relationship between the new liability regime under Article 17 of the DSM Directive and the existing liability exclusion regime under the Act on Certain Information Society Services and on Amendments to Certain Acts (the aforementioned existing safe harbor) is then, unfortunately, addressed in the Czech proposal. Contrary to Article 17(3) of the DSM Directive, according to the literal wording of the Czech proposal, this existing liability limitation regime is not excluded only for purposes falling within the scope of the DSM Directive. [24] It may thus appear that all liability for any user content is to be excluded, not only communication to the public as regards copyrightable use of the work or other subject matter. Again, this shortcoming of the proposed statutory provision is only “addressed” by the explanatory memorandum. However, for the same reasons as above for enshrining the prohibition of general surveillance, I consider it desirable that the wording of the provision in question be sufficiently precise and thus leave no doubt about the more extensive exclusion [under?than?] the existing safe harbor regime beyond the requirements of the DSM Directive.

European Commission guidance on Article 17 – late but still

The somewhat convoluted provisions of Article 17 of the DSM Directive should have been clarified by the European Commission’s non-legally binding Guidelines (the “Guidelines”). [25] The European Commission promised to issue the Guidelines before the implementation deadline. And this is indeed what formally happened in the end – the European Commission issued the document on June 4, 2021, a mere 3 days before the expiry of the DSM Directive’s implementation deadline.

The “clarity” of Article 17 of the DSM Directive is evidenced by the sheer length of the Guidelines – the European Commission provides almost 30 pages of guidance on 10 paragraphs of the DSM Directive. [26] Unfortunately, even the Guidelines, despite their considerable length, do not provide all the answers required for the implementation and practical application of the new legislation.

At the same time, the Guidelines warn that they may need to be amended, following the ongoing court proceedings on the invalidity of Article 17 in relation to Poland’s claim. It is important to note that the Guidelines are a non-legally binding expression of the interpretative view of the European Commission, which has so far always tended to favor the broadest possible measures and obligations for digital platforms.

The Guidelines focus primarily on the definition of the online content sharing service provider itself. For the sake of legal certainty, the recommendation that Member States should explicitly state the full definition, including the negative definition (i.e. explicit exceptions to the definition), when transposing it, is important. The Guidelines also address the individual elements of the full definition in turn. However, the European Commission’s partial conclusion on the aspect of “arranging and promoting works and other subject matter for profit” may be misleading. Specifically, it is stated that the profit-making purpose must be linked to the profit made from the arrangement and promotion of content that has been uploaded by users in such a way that this content attracts a wider audience, “including, for example, by placing advertisements alongside the content uploaded by their users”. However, the mere fact that an advertisement is placed next to the content cannot, on its own, logically satisfy the whole of this aspect – the placing of an advertisement next to the content is not the arrangement and promotion of the content for profit, but merely the possible securing of profit from the content, which (in order to satisfy the definition of an online content sharing service provider) must still be arranged and promoted in other ways. I therefore consider the above formulation to be unfortunate and misleading.

Understandably, the Guidelines also specify (in light of the European Commission’s views) liability exceptions. As regards the obligation to use all reasonable efforts to obtain permission, [27] the Guidelines state that the provider of an online sharing service does not have to obtain separate permission if the user itself has obtained the necessary permission from the rights holder. Further, the provider should proactively approach at least those rights holders that it can easily identify and locate – i.e., at a minimum, collective administrators. The condition of the duty to use all reasonable efforts is also fulfilled if the rights holder refuses to negotiate with the provider for the grant of a license or does not accept a reasonable offer to conclude a license.

As regards the second liability exception, the duty to use all reasonable efforts to make works unavailable, [28] the Guidelines state that the online sharing service provider is free to choose the technology it uses to satisfy this exception. The European Commission cites fingerprinting, hashing, watermarking, etc. as examples of today’s provider standards. The European Commission also stresses that a provider should not be expected to implement the most costly solution if this is disproportionate to the provider’s nature. This reassurance is thus very important for all smaller platforms that are not dominant.

An institution that was included in the Guidelines at the last minute, after closed-door negotiations (outside the consultation and the theses of the Guidelines presented therein), is “content capable of causing significant economic harm to the rights holder”. This entails – in the view of the European Commission – the need to make content so identified immediately inaccessible to the rights holder and to prevent its further uploading. However, content that is not flagged as manifestly infringing must remain accessible pending ex post human review. This institution does not correspond to and does not derive from Article 17 of the DSM Directive and has therefore attracted considerable controversy.

As regards the obligation to prevent access upon receipt of a reasoned notification, the Guidelines add that the specific notification should be sufficiently precise and adequately reasoned. In particular, the notification should include the reasons why the rights holder considers the content to be unlawful and a clear indication of where the content is located. The assessment of an adequately reasoned notification should, of course, be sufficiently prompt.

Thus, it can be summarized that the Guidelines, while useful in parts, do not provide all the necessary answers or even guidance. At the same time, the Guidelines have not escaped controversy and deviation from the text of Article 17 of the DSM Directive. Another practical shortcoming of the Guidelines is their late publication, which further demonstrates the complexity and ambiguity involved in the introduction of Article 17 into the Member States’ legal systems and, in particular, in its subsequent application in practice.

The whole thing could be a little different

However, there is still a possibility that the design of Article 17 of the DSM Directive will change fundamentally. In a less likely case, Article 17 may even be repealed altogether. Indeed, Poland has brought an action [29] before the Court of Justice of the European Union seeking partial [30] or complete annulment of Article 17. The plea is based on the infringement of the freedom of expression and information guaranteed by the Charter of Fundamental Rights of the European Union.

At the time of publication of this article, we only have the opinion of the Advocate General of the EU, who has formally taken a negative view of the action – he proposes that it be dismissed. According to the Advocate General, Article 17 of the DSM Directive provides sufficient safeguards against restrictions on freedom of expression – subject to interpretation. However, the Advocate General also points out the need for sufficient safeguards to ensure that only “manifestly unlawful” content is blocked as a preventive measure (ex ante). Otherwise, preventive blocking may not take place (but this is of course without prejudice to the obligation to remove objectionable content on the basis of a specific notification received).

Thus, according to the Advocate General, the preventive content filtering measures that sharing service providers are required to implement under the contested provisions must be limited to content that is “identical” [31] or “equivalent” [32] to the works and other subject matter identified by the rights holders.

Thus, the novelty introduced by the Guidelines to Article 17, namely the aforementioned institution of “content capable of causing substantial economic harm to the rights holder”, was negatively received. The Advocate General does not agree that the mere designation of content as capable of causing “substantial economic harm” is sufficient to prevent its removal.

Although the Advocate General has thus found a path of interpretation which, in his view, makes Article 17 of the DSM Directive compatible with the protection of fundamental rights and freedoms, this is not the same approach as that presented by the European Commission in the Guidelines. It should be noted, however, that the Advocate General’s opinion merely indicates a certain direction which the Court of Justice might take in its final judgment – but the Court is not bound by the Advocate General’s opinion and may yet spring some surprises on us.

A link to the complete published article can be found here. The article is in czech language only.

[1] Cf. Recital 78 of Directive (EU) 2019/790 of the European Parliament and of the Council of 17 April 2019 on copyright and related rights in the digital single market and amending Directives 96/9/EC and 2001/29/EC.

[2] See Section 2374(2) of the Civil Code under the draft Czech transposition law.

[3] HALL, Charlie. The Witcher author and CD Projekt end royalties dispute with licensing agreement [online]. Polygon. 20 Dec. 2019 [cited 27 Sep. 2021]. Available >>> here.

[4] See Section 66(7) of the Copyright Act as per the draft Czech transposition law.

[5] See Section 2374a(1) of the Civil Code according to the draft Czech transposition law.

[6] See Section 2374a(2) of the Civil Code under the draft Czech transposition law.

[7] See Section 2374a(4) of the Civil Code as per the draft Czech transposition law.

[8] See Section 66(7) of the Copyright Act as per the draft Czech transposition law.

[9] Article 2(6) of the DSM Directive.

[10] These include non-profit online encyclopedias (e.g. Wikipedia), non-profit educational and scientific repositories, open source software development and sharing platforms (e.g. GitHub), electronic communications service providers, online marketplaces, business-to-business cloud services and cloud services that allow users to upload content for their own use.

[11] See Article 17(1) of the DSM Directive.

[12] See Article 17(2) of the DSM Directive.

[13] See Article 17(3) of the DSM Directive.

[14] I.e. the regulation contained in Article 5 of Act No 480/2004 Coll., on certain information society services and on amendments to certain acts (Act on certain information society services), as amended, which transposes Article 14 of Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the internal market (Directive on electronic commerce).

[15] See Article 17(4) of the DSM Directive.

[16] YouTube: We’ve invested $100 million in Content ID and paid over $3 billion to rightsholders [online]. VentureBeat. 7 Nov. 2018 [cited 27 Sep. 2021]. Available >>>> here.

[17] See Article 17(8) of the DSM Directive.

[18] See Article 17(7) and (9) of the DSM Directive.

[19] See Article 17(7) of the DSM Directive.

[20] See Article 17(6) of the DSM Directive.

[21] See Article 17(9) of the DSM Directive.

[22] See Section 46 of the Copyright Act according to the draft Czech transposition law.

[23] See Section 46(2) of the Copyright Act under the draft Czech transposition law.

[24] See Section 47(3) of the Copyright Act as per the draft Czech transposition law.

[25] Communication from the Commission to the European Parliament and the Council Guidelines on Article 17 of Directive 2019/790 on copyright in the digital single market [online]. EUR-Lex. 4 June 2021 [cited 27 September 2021]. Available >>> here.

[26] The subject of this already extensive article cannot be a detailed discussion of the Guidelines in their entirety, so I will focus on what I consider to be the most interesting aspects.

[27] Cf. Article 17(4)(a) of the DSM Guidelines.

[28] Cf. Article 17(4)(b) of the DSM Guidelines.

[29] Action brought on 24 May 2019 – Republic of Poland v European Parliament and Council of the European Union, Case C-401/19.

[30] In particular, the annulment of Article 17(4)(b) and (c) in fine.

[31] The “identical” content is then considered to be identical copies of the works or other subject matter identified by the rights holders without any additional elements or added value.

[32] “Equivalent” content is then considered to be content that reproduces those items in the same way, while showing slight changes so that the public cannot distinguish them from the original items (for example, in the case of simple technical modifications designed to circumvent the filtering system, such as changing the format, reversing or adjusting the frame rate, etc.).

A link to the complete published article can be found here. The article is in czech language only.

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