September 6, 2021
The proposed Regulation on a Single Market for Digital Services (Digital Services Act or DSA) would introduce a horizontal framework for all categories of content, products, services and activities on intermediary services. However, the illegal nature of these elements is not itself defined in the DSA.
This article briefly explores the DSA’s relationship to EU and national copyright law. The general horizontal framework in the DSA establishes rules, including potential exemptions from liability (liability privileges). These rules apply to copyright infringement on intermediary services, but the actual finding of copyright infringement is a matter for EU and national copyright law. Copyright law determines when content is infringing and, in some cases, establishes rules for dealing with illegal content and infringing activities.
Two pertinent examples are Article 8(3) of Directive 2001/29/EC (InfoSoc) and Article 17 of Directive 2019/790 (DSMCD). Article 8(3) obliges Member States to ensure that rightholders are in a position to apply for an injunction against intermediaries whose services are used by a third party to infringe a copyright or related right (see also Recital 59). Article 17(4) DSMCD creates a specific liability regime for Online Content Sharing Service Provider (OCSSPs).
In these two cases, the specific copyright rules applicable to relevant intermediaries should function as lex specialis to the general horizontal framework in the DSA. Indeed, that appears to be the express intent of the DSA. The approach is an explicit clarification on the interplay between the DSA and copyright legislation: Article 1.5(c) states that: “this Regulation is without prejudice to the rules laid down by the following: (c) Union law on copyright and related rights” (see also Recital 11). The goal is to ensure that those specific rules can continue to operate in a manner that allows them to achieve their aim. Given the bloody battle over Article 17 DSMCD (and the importance of Article 8(3) InfoSoc), there is generally consensus amongst weary combatants that copyright should not be an issue in the DSA debate. Leave it alone and perhaps make it even clearer that copyright is wholly unaffected.
As a general rule of interpretation, specific rules take precedence over general rules (lex specialis derogat legi generali). The legislator normally does not have to state this formally in a legislative act. The purpose of a lex specialis is to go further and fill in the gaps left behind by general law. The lex specialis is a narrower construct than general law – it has a unique object and purpose. That object and purpose will be frustrated if general law prevails.
Although the EU legislator does not need to state that a new legislative act is “without prejudice” to an existing more specific rule, the use of such language is common in EU law-making to create legal certainty and to underline the legislative intent.
A conflict between a lex generalis and a lex specialis arises where the same subject matter is concerned. For the purposes of this article that means copyright infringing content on intermediary services. Such a conflict potentially exists between Article 8(3) InfoSoc and Article 17(4) DSMCD respectively and the DSA. As a basic rule, the lex generalis (DSA) will apply when the lex specialis does not contain more specific provisions than those in the lex generalis. Where the lex generalis complements, but does not conflict with the lex specialis, the former will apply in addition to the rules in the latter.
Liability of providers of intermediary services
The liability provisions in Articles 3 to 7 DSA will thus apply to copyright infringing content on all qualifying intermediary services except for online content-sharing service providers (OCSSPs) (see Article 2(6) DSMCD). Article 17(3) of that Directive explicitly provides that when an OCSSP performs an act of communication to the public or an act of making available to the public, the limitation of liability established in Article 14(1) of the E-Commerce Directive (ECD)(the current version of Article 5(1) DSA) does not apply (it continues to apply with respect other types of content which is in itself rather odd). Article 17(4) (and 17(6) for small, new and unpopular OCSSPs) are thus lex specialis to the DSA and take precedence.
Article 5(4) DSA stipulates that it does not affect the possibility for a national court or administrative authority of requiring the service provider to terminate or prevent an infringement (cf., Article 14(3) ECD). The DSA itself does not create any new legal basis for injunctions, except for in the limited case of Article 41(3)(b) but that is for violations of the DSA itself. Additionally, the DSA introduces in Article 8, the concept of orders to act against illegal content, which is meant to apply in the cross-border sphere.
Article 8(3) InfoSoc creates a legal basis for copyright injunctions. It obliges Member States to ensure that rightholders are in a position to apply for an injunction against intermediaries whose services are used by a third party to infringe a copyright or related right.
While Article 8(3) InfoSoc creates its own EU-level specific legal basis for injunctions against intermediaries in the field of copyright, the procedural elements around its operation at national level are left to Member States (subject to EU law). In contrast, while Article 8 DSA, which is not an empowering provision, must draw its legal basis from EU and national law (including potentially Article 8(3)), it does establish its own procedural rules.
These two provisions could be viewed as different species which regulate different matters. However, it is possible for conflicts to arise for example due to differences between the Article 8(2) DSA procedural rules and national Article 8(3) conditions and modalities. Such a conflict could affect the nature or scope of copyright injunctions available to rightholders against intermediaries. However, Article 8(3) should be considered lex specialis to Article 8 with the effect of preserving (where necessary) the integrity of copyright injunctions. It is also possible for the two provisions to operate in a complementary fashion.
Notice & Action Mechanisms (NAMs)(including trusted flagger status)
Article 14(1) DSA provides that hosting providers must have NAMs in place. Article 14(3) ECD (which will become Article 5(1)(b) DSA) already provided that a hosting provider upon obtaining knowledge or awareness of illegal activity must act expeditiously to remove or to disable access to that information to avoid losing the liability privilege.
Article 14 DSA would now establish an EU level regime for all hosting providers. This new provision dictates the elements which notices need to contain to be considered as sufficiently precise and adequately substantiated so as to enable the identification of the illegality of the content. Substantiated notices give rise to actual knowledge or awareness for the purposes of Article 5 DSA. However, there is no obligation for hosting providers to take action on the basis of a notice. Finally, Article 14 DSA also does not establish a staydown obligation which is a major shortcoming that should be remedied.
Article 19 DSA introduces a preferential system for processing notices of trusted flaggers (TFs) which applies only to online platforms. These providers will be obliged to process and decide upon such notices “with priority and without delay”.
Article 17(4)(c) DSMCD incorporates its own notice and action rules in that, as a condition for liability privilege therein, OCSSPs have to act expeditiously, upon receiving a sufficiently substantiated notice from the rightholders, to disable access to, or to remove from their websites, the notified works or other subject matter, and make best efforts to prevent their future uploads.
In the absence of a conflict between Articles 14 and 19 DSA and Article 17 DSMCD, it would seem that the more detailed DSA provisions may apply to copyright notices, regardless of whether or not they are directed at OCSSPs. However, the staydown obligation in Article 17(4)(c) is unaffected.
The most compelling case for a lex specialis application exists as between Article 17(4) DSMCD and Article 5 DSA as it pertains to OCSSPs fulfilling the conditions for the liability privilege. An OCSSP will not be able to rely on Article 5 DSA. Instead, the OCSSP must demonstrate the fulfilment of the more specific conditions of Article 17(4) DSMCD including staydown.
As regards the relationship between Article 8(3) injunctions and Article 8 DSA orders to act against illegal content, the former creates its own specific EU-level legal basis for copyright injunctions against intermediaries which may be considered lex specialis to the latter. Article 8 DSA has no underlying legal basis but rather establishes a procedural framework which might conflict with national procedures underpinning Article 8(3). In these circumstances, Article 8(3) (and national implementations thereof) should be considered lex specialis. It might also be useful to clarify that Article 8 DSA regulates only cross-border injunctions. The EU legislator might also consider additional language clarifying that Regulation is without prejudice to the rules of Union law and of the laws of the Members States on copyright and related rights, which establish specific rules and procedures, including with respect to enforcement, that should remain wholly intact and in no way affected.