Reforming the C-DSM Reform : A User-Based Copyright Theory for Commonplace Creativity

A few years ago, Nellie Kroes warned that because of ill-adapted laws to technological development, “every day citizens […] across the EU break the law just to do something commonplace”. According to Kroes, the Single Market “cried out” for copyright reform. Finally, the EU responded to that reform call but, unfortunately, with the wrong answer. As part of its recent reform to adapt copyright to the Digital Single Market (DSM), the EU Parliament has approved Article 17 of the Copyright in the DSM Directive that might dismantle the traditional knowledge and take-down system, while imposing enhanced liability on UGC platforms, which might incentivise proactive censorship and cripple competition. Article 17 tells the story of a dream of change where ill-adapted laws that citizens break “just to do something commonplace” are no more that awakes in a reality of unfulfilled expectations. Instead of being guided by a welfare or cultural approach where citizens’ interests and fundamental rights are at the center stage, outdated fairness and personality approaches dominate the policy discourse, emphasizing rightholders’ interests and seeking cooperation with online service providers at detriment of users. Instead of changing the law so that it’s legal and easier for users “to do something commonplace”, legislators have engineered the law so that online gatekeepers have an incentive to prevent, block, filter and sanitize proactively that commonplace digital creativity. In contrast, copyright reform in the digital environment should build upon the DSM-Directive licencing emphasis by launching a coordinated approach that should focus on creators’ compensation, rather than exclusive rights, and include (1) exceptions and limitations that might serve as basis for (2) fair compensation (3) through statutory/compulsory, collective and extended licencing mechanisms (4) collected through a levy system (5) that might leverage incomes from online platform advertisement