Too Small to Matter? On the Copyright Directive’s Bias in Favour of Big Right- Holders

This chapter shows how Art 17 of the Copyright in the Digital Single Market Directive (DSM Directive) contains an inherent bias favouring large right-holders to the prejudice of small creators. It studies the likely trajectories and incentives of the relevant actors and concludes that the licensing model of Art 17 is tailored to the needs of powerful content owners. Only smaller right-holders must monitor the market, review the use of their works by third parties, and approach each online-content sharing service provider separately. The enforcement mechanism of Art 17 has similar effects on amateur creators, who will often have to rely on exceptions to copyright when creating content in distinction to larger units that can typically resort to licensing. Collective licensing could offer a potential solution to alleviate the identified problems in unequal treatment of different types of copyright owners. The chapter discusses these effects from the perspective of the principle of equal treatment, protected under Art 20 of the EU Charter. It argues that, unless Member States resort to legal mechanisms—such as collective licensing—that can better balance competing rights and interests and not discriminate between different actors, the end-result will be unconstitutional.