The EU Right of Communication to the Public: From Liability to Responsibility

The right of communication to the public has been one of the most hotly contested EU copyright issues. In the latest phase of the right’s development, the additions of Art. 17 of the Digital Single Market Directive together with the YouTube case and the Regulation on a Single Market for Digital Services have solidified the shift towards a responsibility-based approach whereby a private ordering mechanism has been employed for entities to regulate their behaviour to avoid liability. This shift towards the responsibility-based approach challenges the traditional understanding of “communication to the public” arising from Art. 3 of the Information Society Directive and its resulting case law. Consequently, this article will assess the shift in approach and the resultant challenges in employing it.