Searching for Coordination between the EU Copyright Enforcement System and Content Portability: An Underestimated Challenge?

Portability is a multifaceted concept, standing in between data law, digital consumer law and platform regulation. Considering their different rationale, portability rules can be found in the General Data Protection Regulation (GDPR), the Digital Content Directive (DCD), the Portability Regulation (PR), and the Digital Markets Act (DMA). Throughout the years, portability evolved from a prerogative of data subjects into a content regulatory tool. Therefore, its interplay with intellectual property law became progressively more complicated. Importantly, some portability provisions have been enacted in the form of obligations to be implemented by digital platforms. In this light, the intersection between digital platform regulation and portability may raise concerns. In particular, the relationship between portability and Article 17 of the Copyright Digital Single Market Directive (CDSMD) deserves particular attention. The high liability threshold set therein, and the structural deficiencies of this provision, risk pushing providers towards hyper-deterrent strategies to avoid liability, with the collateral risk of under-implementing portability duties.