A fair balance? - Copyright exceptions and limitations under the Digital Single Market Directive
Sammanfattning: In the digital age of the internet, more content is available to more people than ever before. While this provides an unprecedented opportunity for people to produce creative material for entertainment, it also comes with great difficulties regarding enforcement of copyright. In a response to this, the EU has adopted the Digital Single Market Directive (DSM Directive). In practice, the Directive requires Online Content Sharing Service Providers (OCSSPs) to monitor their platforms for copyright infringement using content-recognizing artificial intelligence. This thesis examines copyright exceptions and limitations under the DSM Directive. The purpose of this thesis is to evaluate the relationship between copyright exceptions, as provided in the European Union’s Directive on harmonisation of certain aspects of copyright in the information society, and the use of algorithmic enforcement by OCSSPs in order to comply with Article 17 of the DSM Directive. The thesis investigates whether Article 17 of the DSM Directive changes the scope of copyright exceptions and limitations, and what the article means for creators’ ability to produce content based on copyright exceptions and limitations. A case law analysis finds that the Court of Justice of the European Union has harmonized copyright exceptions and limitations through its precedents. The thesis finds that the Court emphasizes ensuring a fair balance between the interests of rightsholders and users of protected works. Fundamental rights cannot be used by Member States to expand copyright exceptions and limitations. These are, however, to be considered rights in and of themselves. In its analysis of Article 17 of the DSM Directive, the thesis finds that the Directive does not, change the legal content of copyright exceptions and limitations. Article 17(7) of the DSM Directive expresses that the provision shall not result in the prevention of the availability of works that do not infringe copyright. The further investigation, however, finds that the technical requirement of Article 17(4) of the DSM Directive is incompatible with this notion. A case study of YouTube’s copyright enforcement system, as well as an analysis of algorithms used for enforcement, finds that the current artificial intelligence is unable to accurately detect and protect copyright exceptions and limitations in users’ works. In conclusion, the thesis finds that the requirement of for algorithmic enforcement, as it is currently provided, is not compatible with the notion of copyright exceptions and limitations as rights of users of works.
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