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

A few years ago, Neelie Kroes warned that because of ill-adapted laws to technological development, "every day citizens [ horizontal ellipsis ] 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 call for reform 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 Art. 17 of the Copyright in the DSM Directive, which might dismantle the traditional knowledge and take-down system, while imposing enhanced liability on user-generated content (UGC) platforms, which might incentivize 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" no longer exist that instead awakes to a reality of unfulfilled expectations. Instead of being guided by a welfare or cultural approach where citizens' interests and fundamental rights take centre stage, outdated fairness and personality approaches dominate the policy discourse, emphasizing rightholders' interests and seeking cooperation with online service providers to the detriment of users. Instead of changing the law so that it is 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 licensing 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 a basis for (2) fair compensation (3) through statutory/compulsory, collective and extended licensing mechanisms (4) collected through a levy system (5) that might leverage income from online-platform advertising.