TOWARDS A HARMONISED FRAMEWORK FOR COPYRIGHT ENFORCEMENT IN THE DIGITAL SINGLE MARKET: THE INTERPLAY BETWEEN DIRECTIVE 2019/790 AND DIRECTIVE 2004/48/EC
TOWARDS A HARMONISED FRAMEWORK FOR COPYRIGHT ENFORCEMENT IN THE DIGITAL SINGLE MARKET: THE INTERPLAY BETWEEN DIRECTIVE 2019/790 AND DIRECTIVE 2004/48/EC

Summary/Abstract: EU copyright law has been significantly recalibrated by Directive (EU) 2019/790 (DSM Directive), which adapts substantive rules to digital uses, while enforcement mechanisms continue to rest primarily on Directive 2004/48/EC (IPRED). Although the DSM Directive has already attracted considerable academic attention, the enforcement dimension of its rules – particularly their relationship with IPRED – has received limited treatment. The article analyses how the two directives are to be read and applied together. Drawing on the texts of both directives and relevant CJEU case law, the study contends that the DSM and IPRED should be interpreted as complementary, with IPRED’s horizontal procedural toolkit applying unless expressly displaced by DSM rules. Particular attention is paid to the enforcement implications of Article 17 DSM, which changes platform liability yet does not provide a self-standing enforcement code. The analysis identifies four enforcement difficulties. First, where an online content-sharing service provider satisfies the Article 17(4) conditions and is exempt from liability, the Directive does not clarify whether it may be classified as an intermediary under IPRED. Second, the indeterminacy of the ‘best efforts’ standard determines the OCSSP’s classification under IPRED. Third, Article 17 liability makes damages under Article 13 IPRED difficult to quantify and prove, since valuation hinges on platform metrics difficult to obtain under Article 6 IPRED’s ‘specified evidence’ requirement. Fourthly, Article 17(9) introduces a mandatory internal complaint and redress mechanism for users, yet its relationship with judicial proceedings remains uncertain, particularly as regards sequencing and admissibility. The article highlights the systemic risks of treating the DSM as an implied repeal of IPRED and proposes targeted de lege ferenda solutions aimed at clarifying procedural classification, specifying ‘best efforts’ through measurable, proportionate benchmarks, facilitating access to platform-held data and encouraging structured valuation benchmarks, as well as confirming that recourse to Article 17(9) is without prejudice to judicial enforcement.

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