Freedom to Share: How the Law of Platform Liability Impacts Licensors and Users

The world over, copyright law is rapidly evolving to redefine the liability content sharing platforms face for their users’ behavior. These changes, including the introduction of “upload filters” and “notice-and-staydown” regimes, are likely to have a chilling effect on platform users and profoundly undermine their fundamental freedom to share. Because sharing using open licenses, such as Creative Commons (CC) licenses, is presently highly dependent on the availability of platforms, this working group set out to map emerging trends around platform liability in various world regions and assess their impact on people’s freedom to share. In light of these trends, we also provide concrete policy recommendations for protecting the freedom to share in a world of tightening platform liability.[1]

European Union

Currently, the general intermediary liability regime in the European Union is regulated within the E-commerce Directive of 2000, while two new proposed regulations — the Digital Services Act (DSA) and the Digital Markets Act (DMA) — are in development. In 2019, the EU created a special liability regime for copyright infringement by adopting the highly controversial Directive 2019/790/EC on Copyright in the Digital Single Market (CDSM Directive), which acts as a lex specialis to the general intermediary liability legislation.

The EU regulates the use of protected content by so-called “online content-sharing service…