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Conflicting interests in European Union copyright law: A socio-legal analysis of what problem representations Article 17 DSMD is grounded in

Vantusko, Dennis LU (2020) SOLM02 20201
Department of Sociology of Law
Abstract
For many years, critics of the European Union copyright framework have raised concerns about the lack of legal recognition of exceptions and limitations to copyright-protected works and other protected subject matter, and argued that the European Union copyright framework favours the protection of intellectual property over fundamental rights. The debate about this imbalance reached new heights when the European Commission enacted a proposal, which after much controversy passed legislation as the Directive on Copyrights in the Digital Single Market (DSMD). With the goal to foster the development of a fair licensing market between rightholders and online content-sharing service providers, Article 17 DSMD imposes, among other things, a new... (More)
For many years, critics of the European Union copyright framework have raised concerns about the lack of legal recognition of exceptions and limitations to copyright-protected works and other protected subject matter, and argued that the European Union copyright framework favours the protection of intellectual property over fundamental rights. The debate about this imbalance reached new heights when the European Commission enacted a proposal, which after much controversy passed legislation as the Directive on Copyrights in the Digital Single Market (DSMD). With the goal to foster the development of a fair licensing market between rightholders and online content-sharing service providers, Article 17 DSMD imposes, among other things, a new strict liability and enforcement regime alongside a harmonised recognition of certain exceptions and limitations.

With the purpose to make visible the politics in policymaking, I use the poststructural policy analysis strategy ‘What’s the Problem Represented to Be?’ to study the legislative history of Article 17 DSMD in order to; (a) address how the European Commission has represented the problems in which Article 17 DSMD was argued to be needed, and (b) analyse in which ways Article 17 DSMD could be said to be legitimised through the ways the problems are formulated in the official documents. The results indicate that the ways in which the European Commission has represented the problems in the official documents are very much aligned with what stakeholders within the business of copyright claimed to be problematic in the public consultations that the European Commission issued to gather insights of different stakeholder’s perception of the European Union copyright framework. What users perceived as problematic was left ignored in the official documents, which I argue is the reason why the proposal failed to achieve legitimacy. However, Article 17 DSMD provides certain provisions that had been demanded by users in the public consultations, alongside a promise that the European Commission will base their guidance on how Article 17 DSMD should be incorporated in national legislations on the results of stakeholder dialogues in which users will partake. It is on the basis of this give-and-take strategy that Article 17 DSMD could be argued to have achieved legitimacy. However, by applying Habermas’s theory of communicative action, I argue that Article 17 DSMD is not based on a mutual understanding and that it is grounded in instrumental rationality, and that it therefore cannot be seen as legitimate. (Less)
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author
Vantusko, Dennis LU
supervisor
organization
course
SOLM02 20201
year
type
H2 - Master's Degree (Two Years)
subject
keywords
Article 17, Copyright, DSMD, European Commission, Habermas, Legitimacy, Participatory Web, Policy, User Rights, WPR
language
English
id
9015022
date added to LUP
2020-06-17 09:50:54
date last changed
2020-07-31 06:32:40
@misc{9015022,
  abstract     = {For many years, critics of the European Union copyright framework have raised concerns about the lack of legal recognition of exceptions and limitations to copyright-protected works and other protected subject matter, and argued that the European Union copyright framework favours the protection of intellectual property over fundamental rights. The debate about this imbalance reached new heights when the European Commission enacted a proposal, which after much controversy passed legislation as the Directive on Copyrights in the Digital Single Market (DSMD). With the goal to foster the development of a fair licensing market between rightholders and online content-sharing service providers, Article 17 DSMD imposes, among other things, a new strict liability and enforcement regime alongside a harmonised recognition of certain exceptions and limitations.

With the purpose to make visible the politics in policymaking, I use the poststructural policy analysis strategy ‘What’s the Problem Represented to Be?’ to study the legislative history of Article 17 DSMD in order to; (a) address how the European Commission has represented the problems in which Article 17 DSMD was argued to be needed, and (b) analyse in which ways Article 17 DSMD could be said to be legitimised through the ways the problems are formulated in the official documents. The results indicate that the ways in which the European Commission has represented the problems in the official documents are very much aligned with what stakeholders within the business of copyright claimed to be problematic in the public consultations that the European Commission issued to gather insights of different stakeholder’s perception of the European Union copyright framework. What users perceived as problematic was left ignored in the official documents, which I argue is the reason why the proposal failed to achieve legitimacy. However, Article 17 DSMD provides certain provisions that had been demanded by users in the public consultations, alongside a promise that the European Commission will base their guidance on how Article 17 DSMD should be incorporated in national legislations on the results of stakeholder dialogues in which users will partake. It is on the basis of this give-and-take strategy that Article 17 DSMD could be argued to have achieved legitimacy. However, by applying Habermas’s theory of communicative action, I argue that Article 17 DSMD is not based on a mutual understanding and that it is grounded in instrumental rationality, and that it therefore cannot be seen as legitimate.},
  author       = {Vantusko, Dennis},
  keyword      = {Article 17,Copyright,DSMD,European Commission,Habermas,Legitimacy,Participatory Web,Policy,User Rights,WPR},
  language     = {eng},
  note         = {Student Paper},
  title        = {Conflicting interests in European Union copyright law: A socio-legal analysis of what problem representations Article 17 DSMD is grounded in},
  year         = {2020},
}