Online platforms and copyright : analyzing the liability regime under the digital single market directive and the digital services act in the light of CJEU jurisprudence

This paper discourse delves into the nuanced dynamics between online platforms, copyright, and their respective liability regimes under the Digital Single Market Directive (DSMD) and the Digital Services Act (DSA). The DSMD, particularly Article 17, introduces a pivotal shift in the liability landscape for Online Content-Sharing Service Providers (OCSSP), addressing the 'Value Gap' - the discrepancy between the revenue generated by online platforms from copyrighted works and the compensation received by rightholders. Under Article 17, OCSSP are required to make 'best efforts' to obtain authorization from rightholders and to prevent the availability of unauthorized content. This requirement has sparked concerns over potential 'over-blocking' of lawful content, thereby affecting freedom of expression. The Republic of Poland's challenge to this regime emphasized that it effectively necessitates automatic filtering by OCSSP, thus impinging on freedom of expression. The CJEU recognized this limitation but justified it as necessary for safeguarding intellectual property rights, emphasizing the need for a balance between copyright protection and freedom of expression. In contrast, the DSA governs online platforms that do not qualify as OCSSP. It continues the horizontal framework of the E-Commerce Directive for intermediary service providers, outlining specific due diligence obligations and exemptions from liability. The DSA applies to these online platforms in terms of liability that may arise from illegal content stored at the request of their users. The CJEU's jurisprudential body of work, established before the DSMD came into force, remains relevant for these platforms and must be considered. This paper will also analyze this aspect, highlighting the complexities and developments in the legal frameworks governing online platforms, both OCSSP and non-OCSSP, while balancing intellectual property rights and freedom of expression in the digital environment.