Five considerations for the transposition and application of Article 17 of the DSM Directive

Directive 2019/790 on copyright in the Digital Single Market was adopted in 2019. Member States have until 7 June 2021 to transpose its provisions into their own national laws. Of the various provisions which are part of the directive, Article 17 has been and remains one of the most intensively and intensely discussed ones. This brief commentary takes position in respect of five key points concerning the transposition and application of Article 17: (1) the nature of its right of communication to the public; (2) the possibility for Member States to envisage de minimis exclusions; (3) the nature of exceptions or limitations in paragraph 7; (4) ex ante blocking of content and the role of the complaint and redress mechanism in paragraph 9; and (5) the position of users whose content has been unduly blocked. It maintains that: (1) the right of communication to the public in Article 17 is the same right as found in the rest of the acquis; (2) Member States cannot introduce statutory de minimis exclusions; (3) the exceptions and limitations under Article 17(7) have mandatory character, require adopting a minimalistic transposition method, and should interpreted uniformly across the EU; (4) ex ante blocking is allowed and the complaint and redress mechanism serves inter alia to reinstate unduly blocked content; and (5) users are entitled to invoke protection under available exceptions and limitations, although those cannot be characterized as user rights.