Theory and practice of intellectual property
№ 1 / 2022

ISSN (Print) 2308-0361
ISSN (Online) 2519-2744

PDF (Ukrainian)

DOI: https://doi.org/10.33731/12022.258189

Published      2022-06-03

Оut-of-court settlement of disputes in accordance with European copyright and related rights in the Digital Single Market

Valentyna Trotska
Ukraine
https://orcid.org/0000-0002-7579-1877

Abstract
The article is devoted to the study of the norms of Directive 2019/790 of the European Parliament and of the Council on copyright and related rights in the Digital Single Market, and Guidance on Article 17 of Directive 2019/790 on Copyright in the Digital Single Market.

The purpose of this article is to conduct a legal analysis of the EU Directive and Guidance, and determine the features of protection of copyright and related rights through out-of-court settlement of disputes, in the new realities of digital market development, and the feasibility of considering the relevant norms in the legislation of Ukraine.

Article 17 of this EU Directive and the provisions of the reference are analysed in details.

Rights and obligations of all participants in legal relations arising in the digital environment are considered: rightholders, users, online content-sharing service providers (hereinafter — providers).

The definition of the new term «online content-sharing service providers», proposed in the EU Directive, has been explored. It is stated that providers have the right to provide access to legal content, uploaded by users. At the same time, they are obliged to act based on the permission received from the rightholders, do not affect on users who are using the online content-sharing services in order to legal upload and access to information, to prevent the availability of unauthorized content, uploaded by users.

In the article explores the norms about out-of-court mechanisms of compensation for damage and the settlement of disputes. Its advantages are defined. The disadvantages that may arise in the practical application of the norms are indicated.

In particular, in the Article 17 of the EU Directive and the Guidance do not provide a clear answer to certain questions, such as the status of the person who will have the authority to resolve the relevant disputes; what will be the decisions made by such a person; the procedure, amount and terms of compensation for damages; cross-border application of decisions.

A comparison is made between the norms of the legislation of Ukraine on copyright and related rights and the relevant norms of European legislation. It is noted that in the Law of Ukraine «On Copyright and Related Rights» there is a procedure for termination of infringements of copyright and related rights on the Internet by providers. Out-of-court settlement of disputes is not provided for, but it is not prohibited. The provider restores access to the object if the right holder has not provided him with confirmation of the opening of legal proceedings to protect his rights to the object of copyright and (or) related rights, in respect of which the application for termination of the violation was filed.

Unlike the provisions of the Law, according to Art. 17 (9) of the EU Directive and the Guidance, the user can appeal the decision of the provider to block, delete content. Access to content can be restored based on out-of-court settlement of the dispute, i.e., without going to court.

It is concluded that these European standards are noteworthy and need further study in the context of the application of out-of-court mechanisms of the settlement of disputes that arise between rightsholders, users and providers in the digital environment.

Keywords: copyright, providers, rightsholders, users, content, downloads, interactive access, out-of-court settlement of disputes

References

Directive 2019/790/ EU of the European Parliament and of the Council of 17 April 2019 on copyright and related rights in the Digital Single Market.
https://eur-lex.europa.eu/eli/dir/2019/790/oj

Сommunication from the Commission, “Guidance on Article 17 of Directive 2019/790 on Copyright in the Digital Single Market”.
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:52021DC0288

Directive № 2001/29/ EU of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society. Official Journal L 167, 22/06/2001 P. 0010 – 0019.

Directive 2000/31/ EU of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market.
https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=celex%3A32000L0031

Directive 2014/26/EU of the European Parliament and of the Council of 26 February 2014 on collective management of copyright and related rights and multi-territorial licensing of rights in musical works for online use in the internal market.
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32014L0026

Case C 401/19 Republic of Poland v. European Parliament, Council of the European Union. Provisional text OPINION OF ADVOCATE GENERAL SAUGMANDSGAARD ØE delivered on 15 July 2021.
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A62019CC0401

Paloma Bru. New laws in Spain provide for out-of-court enforcement of copyright.
https://www.pinsentmasons.com/out-law/news/spain-out-of-court-copyright-enforcement

Availability of Alternative Dispute Resolution Mechanisms Report on Piloting in Finland.
https://www.cupore.fi/images/tiedostot/pilottitutkimusraportit/pilotreport_ds10_availabilityofalternativedisputeresolutionmechanisms.pdf