Proposal for a regulation on a Single Market For Digital Services and amending Directive – Digital Services Act
6 mai 2021

#DSA-DMA | #Travaux

Proposal for a regulation on a Single Market For Digital Services and amending Directive – Digital Services Act

6 mai 2021

Accueil I #DSA-DMA I Proposal for a regulation on a Single Market For Digital Services and amending Directive – Digital Services Act

EUROCINEMA represents audiovisual producers at the European level.
The DSA represents an important step toward a more regulated and safer online environment. Notwithstanding the foregoing, we trust some modifications to the text are necessary:

– to improve a better articulation between the existing EU and Member States’ national laws as regards to copyright and related right law, and
– to strengthen the responsibility of intermediaries when moderating illegal contents and therefore notably improving the fight against piracy of audiovisual works for intermediaries not yet covered by article 17 of the 2001 and/or 2019 Copyright Directives.
We remain available to the Commission, the Parliament and the Council to enhance this legislative proposal.

 

A. Lex specialis :

a. Copyright law and related rights are composed of a set of rules and national, European and international treaties and laws that together form a “lex specialis”.
b. The 2019 Copyright Directive notably provides in its article 17 for a set of obligations for so-called Online Creative Content Sharing Platforms (OCCSPs). Although OCCSPs do not cover all types of platforms that can give access to copyright protected content (marketplaces for instance are regrettably explicitly excluded from the scope of Article 17), this article contains provisions that are key to our sector as they clearly clarify the fact that uploading of an audiovisual content is an act of Communication to the public, and provide for a clear responsibility for OCCSPs to obtain the authorization (notably through license agreements) from right-holders for any copyright-protected content uploaded by a user. In addition, in case of unauthorized uploads, OCCSPs are obliged to do their best efforts to implement measures in order to take down and prevent access to fraudulent content notified by rightholders.
c. Article 8.3 of the 2001 Copyright Directive is another example of lex specialis that grants to the rights holders the possibility to apply for an injunction against intermediaries “whose services are used by a third party to infringe a copyright or related right ”. This article is key today in most cases of copyright infringements whe re non-EU Internet platforms or intermediaries are involved. The implementation of this article by Member states varies from one state to another and has sometimes gone further than the very terms of the 2001 Directive, in line with the goals pursued by the Directive, notably “providing for a high level of protection of intellectual property”. 
Therefore, it is crucial to us that these major achievements remain unaffected by the DSA.
However, despite Recital 11 and article 1.5.c ruling out copyright and related rights law, spill over effects might loom. The DSA is aimed to “complement” (recital 9) the lex specialis. There is therefore a risk that the existing Copyright and related EU law along with national law and the jurisprudence be put in stake by the DSA provisions.
Why is the DSA Regulation a concern?
Some examples:
– Article 5.4 of the DSA only concerns hosting services (and not the other intermediaries).
– Article 8.1 of the DSA stipulates that the orders should provide “specific items” narrowing the possibility to tackle either equivalent items or piracy platforms as a whole. The same goes for Article 14.2.b of the DSA which refers to “clear indication of the URL”, a concept unsuitable and outdated for some platforms (such as Apps for instance).
– Finally, article 43 (and Recital 81) of the DSA gives to the “Digital services coordinator where the recipient resides or is established” the exclusive right to receive a complaint from a recipient whereas article 8.3 of the Copyright directive does not fo resee such a restriction. This exclusivity could impair the rightsholder’s capacity to directly lodge complaints against intermediaries in front of national courts.

Therefore, the DSA Regulation should make clear that no provisions of the DSA shall lead to less favourable solutions to fight against copyright infringement online than those prevailing before or after its entry into force in the Union’s and its Member states’ positive law relating to the protection of literary and artistic property (see amendments in annex).

 

B. Liability and Notice and action:

a. Article 14 – Notice and Action:

i. Article 14.1 of the E-commerce directive provides for a positive obligation of intermediaries to “remove and disable access” to illegal activity or information when notified. Unfortunately, article 14.5 of the DSA (that supersedes article 14 of the E-commerce directive) leaves the possibility for the intermediary to decide or not to remove the notified illegal content. On this peculiar topic, the DSA is a step back from the previous situation. This new provision is problematic since it will affect contents or services protected by copyright law in platforms other than video sharing platforms (covered by article 17 of the Directive 2019/790 on Copyright) like marketplaces.
ii. Exact URL: as explained above, article 14.2.b requests “a clear indication of the electronic location of that information, in particular the exact URL or URLs …”. However, this peculiar specification widely differs from the reality and is rather outdated in some cases. Indeed, the notice and take down notification that rights holders communicate to the intermediaries are not always composed of exact URLs of the contents but of digital fingerprints and/or identifiers (such as ISAN for instance) so that any reappearance of the same content (with different URL address) be taken down. In addition, no URL is used for Apps.
iii. For the reasons expressed above, we trust that it is essential, particularly for marketplaces, that a take down and stay down obligation be introduced in article 14 making sure that illegal contents are removed and identical or equivalent illegal contents do not reappear. This take down and stay down obligation should beside be extended to caching services.
 

C. Scope of the liability regime in the DSA: exclusion of the active intermediaries (Recital 18) and/or those facilitating illicit acts (Recital 20)

The DSA regulation takes over the limited liability regime of the E-Commerce directive 2000/31/CE in favour of mere conduits, caching and hosting intermediaries. However, it is key that the intermediaries that have in the meantime been qualified as active by the CJUE (see Recital 18 which is taking over Google AdWords Decision) would not benefit from this new DSA liability exemption regime. Same for those intermediaries mainly aiming at facilitating piracy (see Recital 20). Therefore, we trust that the following additional precisions be added:

* Recital 18: « … control over, that information. A provider of intermediary services plays an active role when assistance is given to the recipient of the service, notably for the optimizing and the promotion of the content offered . » [added provisions here refer to EUCJ case law in its “eBay” ruling of July 12th, 2011 (C-324/09)]

* Recital 20: « Piracy professionals should not benefit from the DSA liability exemptions. It should therefore be specified that if the main purpose of the service provider is illegal activities, or their facilitation, the exemption of liability could not apply . » [see similar provisions in recital 62 of the 2019/790 EU Copyright Directive]

 

D. Recital 26: a potential step backwards

Recital 26 notably provides the following: « Where possible, third parties affected by illegal content transmitted or stored online should attempt to resolve conflicts relating to such content without involving the providers of intermediary services in question ». 
It therefore seems to suggest a subsidiarity principle when lodging complaints against intermediary providers (providers of intermediary services should only be involved if really needed). This would be a huge step backward considering the E-commerce Directive and Copyright directive provisions.

 

E. No General monitoring (recital 28 and article 7):
It should be clarified in Recital 28 that Article 7 of the DSA proosal providing for a no general monitoring obligation shall not hinder the Intermediary Service Provider to have a stay down obligation including with automated recognition tools as ruled by the EUCJ in the « Facebook » case on October 3rd, 2019 (C-18/18).

F. Injunction Proceedings (articles 8 and 9 et recital 29):
As previously stated, the harmonization of injunction proceedings (notably article 8 that only concerns some intermediaries and the notification of specific identified illegal contents) could put at stake the national injunction regimes even when they proved already to be effective.
We therefore suggest that, beyond the clarifications requested in paragraph A) above, article 8 and 9 only apply to cross-border injunctions. This solution would resolve possible procedural differences between Member States. Besides, the injunctions proceedings as per article 8 appear to be too narrow or unsuited, in the same manner as explained earlier regarding article 14 (see paragraph B) a) ii above).

The orders to provide information regulated by this Regulation concern the production of specific information about individual recipients of the intermediary service concerned who are identified in those orders for the purposes of determining compliance by the recipients of the services with applicable Union or national rules. Therefore, orders about information on a group of recipients of the service who are not specifically identified, including orders to provide aggregate information required for statistical purposes or evidence-based policy-making, should remain unaffected by the rules of this Regulation on the provision of information.

Finally, more specifically concerning article 9 (and recital 32), in case of personal injunctions it should be specified that the data to communicate to the intermediary service provider is wider than the postal address. Indeed, the CJUE July 2020 which provides for such a limit is often used by bad faith defendants.


G. Trusted flaggers (article 19) :
For online platforms13 which are not SMEs, Article 19 of the DSA proposal provides that notifications issued under the provisions of the above -mentioned Article 14 by a trusted flagger shall be processed as a matter of priority. Article 19.2 provides that the status of trusted flagger is granted by the Coordinator designated by the Member State (cf. Art. 38 et seq. of the DSA).
First of all, it seems essential that the procedure for awarding trusted flaggers status should provide for the possibility for the government authorities of Member States to propose candidate entities for this status, or to give opinions on these applications, and also to provide for the possibility of appealing against the Coordinator’s decision in the event of a candidate entity being refused this status.
Secondly, there is no reason not to extend this regime of trusted flaggers to intermediaries other than online platforms, in particular cyberlockers or other types of hosting platforms. Similarly, the relevance of the provisions of Article 16 of the DSA, which exclude SMEs from this regime, particularly after a certain period of time elapsed since the creation of the company and after a certain audience has been reached, may be questioned.


H. Repeated infringements (Article 20 and Recital 47):

As in the case of « trusted flaggers », there is no reason not to extend the sanction regime for misuse of the service (Article 20.1) or the notification system (Article 20.2) to hosting services other than online platforms, in particular cyberlockers or other kind of hosting service. Similarly, the relevance of the provisions of Article 16 of the DSA, which exclude SMEs from this regime, particularly after a certain period of time elapsed since the creation of the company and after a certain audience for the service has been reached, may be questionable.


I. Traceability of traders (« KYBC ») (article 22) :

Currently, Article 5 of the E-Commerce Directive requires traders to identify themselves on their website, but this provision often remains unanswered, due to the lack of sanctions. The « Know Your Business Customer » (KYBC) obligation imposed by Article 22 on online platforms which enable consumers to conclude distance contracts with traders is therefore welcome, but not sufficient, since it is limited to marketplaces. This obligation to obtain and reasonably verify the identifyin g information of the traders with whom they contract should be extended to all intermediary service providers (e.g. by transferring the provisions of Article 22 to Chapter III Section 1 of the DSA applicable to all intermediaries).

 

J. Lodging complaint for the implementation of the DSA (Article 43 et Recital 81):

As it stands, Article 43 and Recital 81 provide that beneficiaries of the service (« individuals or representative organisations ») have the right to lodge a complaint against an inte rmediary alleging a breach of the provisions of the DSA with the Digital Services Coordinator in their Member State of residence. The right to act should be extended to any interested party, or at least to « trusted flaggers » and the competent public authorities of the Member State.

 

K. Illegal contents:

While the definition of an illegal content provided into article 2 g)14 is general, leaving each Member States the possibility to define what is illegal according to its own national law, it still covers an activity including “sales of products and provision of services”.
For the sake of clarity, it should be specified that it includes “sales of products and contents”.

 

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