Why add to Ukraine’s problems with an unnecessary implementation of a bad EU copyright law?

It would be something of an understatement to say that Ukraine is facing serious problems currently. Against that background, this news from the IPKat blog is rather surprising:

While certain EU Member States are still to transpose Directive (EU) 2019/790 (Copyright [Digital Single Market] Directive), Ukraine, a non-EU country, has decided to implement certain provisions from the Directive. This includes Art. 17 of the Copyright DSM Directive on uses of copyright-protected content by certain internet platforms (the so-called “online content-sharing services providers”, OCSSPs).

The move is part of a broader copyright reform that is required by the EU/Ukraine Association Agreement, even though that political and economic deal does not force Ukraine to adopt the EU Copyright in the Digital Single Market Directive, which was passed after the Agreement was signed. It is curious that Ukraine has on its own initiative decided to do so, particularly because it is likely that the most contentious part of the EU copyright law – the upload filters required for Article 17 – will be included in the Ukraine equivalent, and in an even more extreme implementation than the EU version. In doing so, Ukraine takes a page from the playbook of some copyright maximalist EU countries by going beyond what the Directive requires from the platforms:

Failure to secure an authorisation means that an OCSSP [Online Content-Sharing Service Provider, e.g. YouTube, Twitch, FB, and others] will be held liable for the unauthorised use of user-uploaded content, unless it (1) took “all possible actions” [as opposed to “best efforts” in the Copyright DSM Directive] to secure such an authorisation; (2) took “all possible actions” to disable exchange of content, about which a notice has been filed; and (3) acted to terminate infringement and to prevent future uploads of content, in respect of which a notice has been submitted. In determining whether an OCSSP has complied, account shall be taken of the number of users of the relevant services, of works and subject-matters used, as well as the availability and efficiency (but not the cost: cf Art. 17(5)) of technical means necessary to comply with its obligations.

It is not yet clear how all the EU Member States will implement Article 17, or, indeed, whether it is even possible to do so in a coherent fashion compliant with other EU laws – something that the Court of Justice of the European Union needs to clarify. For Ukraine to commit itself to a terrible implementation of a bad law, just when it is facing an extreme geo-political threat, seems quite extraordinary.

Featured image by Haidamac.

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