Dr. Martin Senftleben Presents on the EU Approach to Copyright Liability for User-Generated Content Platforms
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Authored by: Daina Elias, Windsor Law JD Candidate ‘26 & LTEC Lab Research Assistant
On March 17, 2026, LTEC Lab at Windsor Law had the great pleasure of hosting Dr. Martin Senftleben for an inspiring lecture and discussion on user-generated content (UGC) platforms and their regulation in the European Union (EU). This was part of Professor Pascale Chapdelaine’s Copyright law course.
Dr. Senftleben joined us virtually from the Amsterdam Law School, where he serves as Professor of Intellectual Property Law and Director of the Institute of Information Law. While holding these roles, Dr. Senftleben is widely regarded as a leading expert in European copyright law.
Focusing on the regulation of UGC, Dr. Senftleben situated the niche forum on copyright law within a digital environment that is no longer defined by passive consumption whereby a user waits “for content that the creative industry and distribution channels make available” to them. Instead, he mentions how in the participatory era of “Web 2.0,” users are now positioned to actively create and circulate content directly with the internet audience through practices like parody, memes, mashups, and valid criticism.
This evolution, he explained, has led regulators to rethink older models of liability, particularly with platforms such as YouTube, which not only have the capacity to host content, but can effectively organize and amplify user expression at scale.
The EU response, set out in the Copyright in the Digital Single Market Directive, (Directive (EU) 2019/790), and in particular Article 17, takes a different approach than the “notice and notice” regime in Canada, or notice-and-takedown approach in the US. Article 17 introduces a new copyright liability regime for “online content-sharing service provider” (OCSSPs), YouTube and the like. Effectively under the EU Directive, OCSSPs are held to be communicating to the public when granting access to copyright works uploaded by their users. As a result, OCSSPs need to have proper licenses in place to avoid infringement of the works incorporated in user content uploaded on those platforms.
Under this model, platforms are required to make “best efforts” to obtain licences from rights holders to bridge the “value gap” (balance platform and creator earnings) and, if they cannot, to prevent infringing material from being made available vis-à-vis the widespread deployment of automated content filtering systems.
Note that since we are discussing big players of technology platforms like YouTube, smaller OCSSP’s are not required to have anti-copyright infringement filtering systems similar to YouTube’s “Content ID”. Such smaller players’ obligations are limited to a notice-and-takedown approach. This was done in consideration of the law presenting an unfair advantage to the larger companies.
With algorithmic filtering, Dr. Sentfleben emphasized that there are not hundreds of human copyright specialists reviewing each upload, but algorithmic enforcement that has “[left] this task to the machine.” Resultantly, these systems “might not be sophisticated enough,” to reliably tell the difference between infringement and lawful uses such as parody. The consequence is a built-in tendency to block lawful content, and not because it falls outside the scope of legal protection, but because the algorithmic enforcement mechanism cannot capture the distinctions the law requires or, in other words, the “context” to which every law student has been trained to consider.
Following the presentation, in continued discussions among classmates, 2L law student Mo Hussain remarked, “If lawful creative content gets taken down first and users have to fix it later, the system is just playing it safe, and it stops supporting creators the way a participatory web is supposed to.”
The European framework includes safeguards meant to protect freedom of expression, including proportionality requirements and user complaint mechanisms, but their real effect remains debated. That debate was central to Poland v Parliament and Council (Case C-401/19), where Poland challenged Article 17 on the basis that its filtering obligations could lead to the overblocking of lawful UGC. The EU Court of Justice nevertheless upheld Article 17, concluding that the safeguards built into the provision were sufficient to mitigate the risks associated with automated enforcement.
However, Dr. Senftleben went on to explain the “six freedom of expression safeguards,” and why he remains skeptical of their effectiveness in practice. For instance, digital platforms face stronger pressure to avoid copyright liability than to accommodate user complaints, which leads to a tendency toward excessive content removal. At the same time, the burden of contesting wrongful takedowns rests with users, many of whom lack the resources or incentive to do so. This, as Dr. Senftleben described it, “might be mere cosmetics” in practice.
Despite early concerns of Article 17, Dr. Senftleben noted, “the sky has not fallen” in the EU, as platforms continue to host large amounts of creative content, including memes, mashups, and parodies (see STRANGER THINGS: A Bad Lip Reading on YouTube). He attributed this continuity to industry practice wherein many rights holders allow use of their works while monetizing it through advertising systems, which reduces the need for aggressive monitoring and copyright enforcement. This, however, creates a different issue, particularly where highly successful UGC can generate revenue that mainly goes to original rights holders, thereby raising concerns about whether and how value should be shared with users, who constitute the creative contributors ultimately driving its engagement.
Three years after Directive (EU) 2019/790 on Copyright in the Digital Market, the regulatory landscape was further developed by the EU's Digital Services Act, Regulation (EU) 2022/2065, which added broader rules for online intermediaries, imposing additional transparency and oversight obligations that operate alongside Article 17. Dr. Senftleben pointed to this wider framework as a more promising area in the conversation, highlighting the fruitful role of a coordinated, multi-stakeholder approach involving researchers, civil society organizations, and member states to help platforms make fairer decisions.
All in all, consider Canada’s notice-and-notice system (ss. 41.25-41.27 of the Copyright Act (RSC, 1985, c C-42)), which does not require platforms to take content down, but instead leaves it up and passes the issue to users and rights holders. That avoids some of the concerns tied to automated filtering, but it also raises the question of whether Canada’s “lighter” approach effectively addresses the competing interests of copyright holders, uploaders of their works on UGC platforms, and the public.
The real contrast is then not about which one the two systems is better, but about what each one prioritizes, be it control or openness, and whether either can truly strike the right balance in an environment that is built on constant creation and sharing.
LTEC Lab acknowledges with thanks Dr. Martin Senftleben for sharing his insights and expertise, as well as the law students, faculty members, and online attendees who joined the event and contributed to a thoughtful discussion. For those that missed it and would like to tune in, the event recording is available here via Microsoft Teams.
Those wishing to learn more about the topics discussed in this presentation may wish to consult Dr. Senftleben's published scholarship, including Institutionalized Algorithmic Enforcement – The Pros and Cons of the EU Approach to UGC Platform Liability. Florida International University Law Review 14 (2020), 299-328, Available at SSRN: https://ssrn.com/abstract=3565175.