To upload or not – an analysis of art. 17 of the Directive on copyright in the digital single market

Abstract

The “upload-filter” for online sharing platforms have been one of the hot issues regar­ding the new DSM-directive on copyright. The battle continues at the national level concerning the correct and balanced implementation of Art. 17 DSM-D, in particular regarding the guarantee of free­dom of speech. The article explores the liability system of Art. 17 DSM-D and analyzes its potential contradiction to fundamental EU rights which has been laid down by the CJEU in the SABAM Netlog case, in particular the prohibition of general monitoring duties. Even though one might argue that Art. 17 DSM-D could pass that test the article develops several implementation options in order to safeguard user rights and freedom of speech.