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Title: An academic perspective on the copyright reform
Author: Stalla Bourdillon, Sophie
Rosati, Eleonora
Turk, Karmen
Angelopoulos, Christina
Kuczerawy, Aleksandra
Peguera Poch, Miquel  
Husovec, Martin
Others: University of Southampton
University of Tartu
University of Cambridge
Katholieke Universiteit Leuven
Tilburg University
Universitat Oberta de Catalunya (UOC)
Keywords: content recognition technologies
copyright directive
communication to the public
e-commerce directive
intermediary liability
hosting providers
digital single market
Issue Date: 1-Feb-2017
Publisher: Computer Law and Security Review
Citation: Stalla-Bourdillon, S., Rosati, E., Turk, K., Angelopoulos, C., Kuczerawy, A., Peguera Poch, M. & Husovec, M. (2017). An academic perspective on the copyright reform. Computer Law and Security Review, 33(1), 3-13. doi: 10.1016/j.clsr.2016.12.003
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Abstract: The recently proposed new Copyright Directive was released on 14 September 2016. It has been described by EU law-makers as the pillar of the copyright package promised by the European Commission (EC), to be delivered before the end of Mr. Juncker's mandate. In its Communication of 6 May 2015, the EC had stressed -the importance to enhance cross-border access to copyright-protected content services, facilitate new uses in the fields of research and education, and clarify the role of online services in the distribution of works and other subject-matter. The proposed Copyright Directive is thus a key measure aiming to address two of these three issues. However it is not without shortfalls. We have therefore decided to publicly express our concerns and send an open letter to the European Commission, the European Parliament and the Council to urge them to re-assess the new provisions dealing with mandatory filtering of user-generated content in the light of the CJEU case law and the Charter of Fundamental Rights of the European Union. In a more extended statement, we examine in details the text of both the explanatory memorandum and the Directive itself. Our conclusions are: 1. A comprehensive re-assessment of Article 13 and Recital 39 in the light of the Charter of Fundamental Rights of the European Union and the E-commerce Directive (in particular Article 15) including CJEU case law is needed, as the proposed Copyright Directive does not expressly address the issue of its compatibility with both of these texts. 2. Recital 38 does not clarify the domain and effect of Article 13. Rather, it creates confusion as it goes against settled CJEU case law (relating to Articles 14 and 15 of the E-commerce Directive and Article 3 of the Infosoc Directive). Recital 38 should therefore be deleted or substantially re-drafted/re-phrased. If the EU wants to introduce a change in this regard it should clearly justify its choice. In any case, a recital in the preamble to a directive is not an appropriate tool to achieve this effect. We hope that this exercise will prove useful for the debate that has now begun both in the European Parliament and in the Council.
Language: English
ISSN: 0267-3649MIAR
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