Mind the Value Gap: Article 17 of the Directive on Copyright in the Digital Single Market

Over the last few years there has been a turbulent debate about copyright law in the Digital Single Market. The rules applicable to online platforms in the context of online exploitation of copyright-protected work required clarification and measures need to be considered to ensure fair distribution of revenue between online platforms and copyright-holders. To that end, the EU has adopted a Directive that contains a very controversial provision (Article 17), which makes online platforms liable for infringing user-generated content in order to force them to either draw up licenses with right-holders or to ensure the unavailability of copyright-protected work in their platforms, indirectly encouraging them to use content recognition technology to monitor all content. This approach is reminiscent of the globalized trend towards the privatization of the enforcement of illegal content online and these new rules clash in different ways with EU law and the CJEU case law. In addition, empirical evidence supporting Article 17 was never provided and contrary empirical evidence was ignored. Arguably, Article 17 is a new sui generis exclusive right that works as a lex specialis to the existing law, with its own conditions and liability mitigation mechanisms. Certainly, Article 17 constitutes an extremely complex legal text that interplays with other provisions of the law and the existing case law. Therefore, there is a need to clarify the nature, options and pitfalls of this legal text to ensure uniform national implementations across the EU in order to make the Digital Single Market work.