Copyright in the Digital Age: How the EU Is Redefining Platform Liability

Introduction: Creators, Platforms, and the Law Collide

As digital platforms have become the primary space for content consumption and sharing, the EU faced a growing dilemma: how to fairly compensate creators and rights holders while maintaining user rights and internet freedoms?

The answer, or at least the starting point, came in the form of Directive (EU) 2019/790 on Copyright in the Digital Single Market (DSM Directive). Now fully transposed by most Member States as of 2024–2025, the Directive introduces bold reforms that recalibrate copyright law in the age of YouTube, TikTok, Spotify, and AI-generated content.

Its most controversial and far-reaching provision—Article 17—has significantly redefined online platform liability for copyright infringement.

Article 17: A Shift in Legal Responsibility

Under the previous legal regime, platforms hosting user-generated content (UGC)—like YouTube or SoundCloud—were generally protected from liability under the E-Commerce Directive’s “safe harbour” rules, so long as they removed infringing content upon notice (the “notice-and-takedown” model).

Article 17 of the DSM Directive changes this fundamentally:

• Online content-sharing service providers (OCSSPs) are now directly liable for unauthorized uploads unless they can prove they made:

  • Best efforts to obtain authorization (licenses),

  • Best efforts to ensure the unavailability of unlicensed content (e.g., via filtering),

  • Prompt removal of infringing content upon notice.

This essentially forces platforms to proactively filter content—sparking intense debates about censorship, automation, and freedom of expression.

Licensing at Scale: New Obligations for Platforms

To comply with Article 17, OCSSPs must now negotiate licensing agreements with:

• Music rights societies,

• Film producers,

• Publishers and collecting societies,

• Independent creators and content aggregators.

This has led to the rise of mass licensing models, metadata standards, and even blockchain registries to manage rights at scale. While large platforms like YouTube or Meta can afford these systems, smaller platforms face legal uncertainty and technical barriers.

Some Member States, such as Germany, attempted to soften the rule by introducing user rights carve-outs, like “minor uses” and ex ante declarations for non-commercial uploads—but the CJEU is expected to clarify the legality of such national interpretations.

Upload Filters and the Free Speech Debate

The shift to platform liability has given rise to one of the most contentious issues: the use of automated upload filters, often based on AI and fingerprinting technologies (e.g., Content ID).

Critics argue:

• Filters over-block lawful content, such as parodies, memes, or criticism,

• They chill speech, especially for users in satire, education, or activism,

• Appeal mechanisms are often opaque, automated, and slow.

In Poland v. Parliament and Council (CJEU, 2022), the Court upheld Article 17’s validity but emphasized that Member States must implement it with strong user safeguards, including:

• The right to use exceptions (quotation, parody, criticism),

• Independent and effective redress mechanisms.

This ruling confirmed that the balance between copyright and fundamental rights is not optional—it’s mandatory.

Press Publishers’ Rights and the Link Tax Debate (Article 15)

Another major change comes from Article 15, which gives press publishers the right to demand remuneration from online platforms that reuse their content—especially news aggregators and search engines.

This provision:

• Requires platforms like Google News and Facebook News to pay for snippets,

• Was meant to help publishers survive in the digital advertising economy,

• Has resulted in mixed outcomes—with some platforms cutting deals, and others simply reducing visibility of news content in certain countries.

France has seen the most active implementation, with the French competition authority forcing Google to negotiate fair deals with publishers. Meanwhile, critics argue Article 15 may reduce access to quality journalism, particularly for smaller outlets and aggregators.

Text and Data Mining (TDM) Exceptions: AI and Research Freedoms

The DSM Directive also addresses text and data mining—the automated analysis of large datasets, often used in AI training, academic research, and market intelligence.

There are now two harmonized exceptions:

1. For research organizations and cultural heritage institutions (Article 3) – mandatory and broad,

2. For general purposes (Article 4) – allowed unless rights holders explicitly opt out via machine-readable tools.

This framework seeks to support AI development and scientific research while maintaining authorial control—though debates continue over what constitutes “opt-out” and how enforceable it is.

Challenges in Implementation Across Member States

While the DSM Directive aims to harmonize copyright across the EU, national implementation has been uneven:

• Germany and the Netherlands adopted detailed national laws with user protections,

• Some Member States delayed transposition, causing legal limbo,

• Disputes over redress systems, exceptions, and the technical feasibility of compliance persist.

The European Commission has issued guidance, but judicial harmonization through the CJEU is still expected to play a central role in resolving tensions.

Conclusion: A New Copyright Settlement—or a Work in Progress?

The EU’s copyright reform marks a historic shift in platform liability and creators’ rights. It attempts to build a fairer digital economy by:

• Compensating content creators more effectively,

• Making platforms accountable for their role in content distribution,

• Balancing innovation, expression, and legal certainty.

However, real challenges remain—technical, legal, and political. The next few years will determine whether this new regime achieves its goals or creates new forms of imbalance.

For legal professionals, platform operators, rights holders, and creators alike, understanding Article 17 and its ripple effects is no longer optional—it’s foundational.