EU Commission consultation on the Digital Services Act package
8 September 2020
Contributions
A revision of the E-Commerce Directive as the horizontal instrument that regulates digital services is necessary to reflect the rapid transformation and expansion of e-commerce in all its forms and address the current challenges. The E-Commerce Directive is indeed outdated. It does not address today’s market realities: a much wider diversity of services than in 2000 and the massive turnover generated by and around these digital services.
This outdated legal framework has generated adverse effects. The hosting services’ liability exemption has been invoked by some online services whose activity was not limited to storing information but rather, expanded to communicating it to the public. This has created confusion in courts and a sense of immunity by these services for 20 years, leading to a situation of legal uncertainty.
The new services which have emerged play a significant role in the information and media environment. In particular, as highlighted by the European Parliament, social media services may determine what content is provided to their users, thereby profoundly influencing the way we obtain and communicate information, to the point that they have de facto become public spaces in the digital sphere. This should come with corresponding responsibility.
For audiovisual authors and their collective management organisations (CMOs), digital services have become big players in the exploitation of their works, to the detriment of traditional players like cinemas, broadcasters and DVDs publishers. The COVID-19 crisis has accelerated the transition of viewers’ habits to digital platforms.
Thanks to the recent adoption of the 2018/1808 Audiovisual Media Services Directive (AVMS Directive) and the 2019/790 Directive on Copyright in the Digital Single Market (Copyright Directive), new rules are applicable to digital services which better fit their role and importance in the media and copyright markets. The Copyright Directives provide authors with a right to appropriate and proportionate remuneration (Art 18) and a right to receive information on the exploitation of their works, including online(Art 19), and reaffirms that online content sharing service providers perform an act of communication to the public when they give to the public access to copyright-protected works uploaded by their users (Art 17). The AVMSD Directive promotes the presence of European 2 audiovisual works on video-on-demand platforms and encourages the investment of these platforms in the production of these works (Art 13).
In order to ensure legal certainty to authors, the new rules governing the liability of online platforms should apply without prejudice to the provisions of the Copyright Directive and the AVMS Directive.
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