The DSM Directive Five Years On

By Eleonora Rosati[*]Professor of Intellectual Property Law, Stockholm University. Email: eleonora.rosati@juridicum.su.se. The present contribution summarizes the main points made by the author in her address “How Have the Nordic Countries Implemented the DSM Directive Articles 15 and 17?” during the Nordic Copyright Symposium, held in Copenhagen (Denmark) on 26–27 September 2024.

1. Introduction

Over five years have passed since the adoption of the EU Directive on Copyright and Related Rights in the Digital Single Market[1]Directive (EU) 2019/790 of the European Parliament and of the Council of 17 April 2019 on copyright and related rights in the Digital Single Market and amending Directives 96/9/EC and 2001/29/EC, OJ L 130, 17.5.2019, p. 92–125. (‘DSM Directive’). As its title suggests, by adopting this directive, the EU legislature intended to tackle and realize the digital dimension of the EU single market from a copyright and related rights perspective. Yet, looking at the resulting national transpositions, it is highly doubtful that such an objective might be considered achieved. Meanwhile, the Court of Justice of the European Union (‘CJEU’) has been already referred questions on the interpretation of relevant provisions of the directive, in light of doubts regarding the compatibility between these and national transpositions thereof.[2]At the time of writing, they are: ONB and Others, C-575/23, EU:C:2025:141 (Belgium); Meta Platforms Ireland, C-797/23 (Italy); Streamz and Others, C-663/24 (Belgium).

The complexity of the situation is further exacerbated by the adoption, after the DSM Directive, of horizontal legislation – including but not limited to the Digital Services Act[3]Regulation (EU) 2022/2065 of the European Parliament and of the Council of 19 October 2022 on a Single Market For Digital Services and amending Directive 2000/31/EC (Digital Services Act), OJ L 277, 27.10.2022, p. 1–102. (‘DSA’) – that, while not copyright-specific, also serve to construe relevant provisions of the directive and, insofar as the DSA in particular is concerned, be in a lex generalis to lex specialis relationship with, e.g., a key provision of directive like its Article 17.