Copyright Directive Saga: EU Court of Justice states that Article 17 does not violate the right to freedom of expression and information of users

As you readers so well know, on 14 September 2016, in line with the digital single market strategy, the European Commission presented a legislative package for the modernisation of EU copyright rules aiming to adapt EU copyright rules in a context where tech was rapidly changing the way works were created, produced, distributed and exploited. 

Such package included the new directive on copyright in the digital single market. And such directive included the above-mentioned article 13 (now 17). 

Back in the days, when article 17 was being cooked (it was called indeed article 13… lucky number), no one could foresee the infinite number of pages of this endless book. Lobbying sessions with the MEPs, constants volte-face from different committees (JURIS, IMCO, etc…), advocates different stakeholders trying to avoid each other on Brussels and Strasbourg corridors. Really, no one could have foreseen the traumatic and controversial transposition proposals, the delays in meeting such transposition deadlines and… what bring us here now, the ACTION for annulment made to the CJEU trying to shake the legal text.

So, first things first, what is article 17 about? In a nutshell, the main purpose of Article 17 is to reduce the amount of unauthorized copyrighted material available online. And how is this supposed to be done? Through requirements on online content-sharing services (“OCSSPs”) to obtain authorization/licensing from the rightsholders or their representatives, before displaying copyrighted material uploaded by its users, or in case of displaying content without a proper licence, demonstrate it has complied with certain requirements that will allow her to escape liability.

Intros made, let’s see what happened with Poland. So, Poland asked the Court of Justice of the European Union (“the Court”) to annul Article 17(4), point (b), and point (c), and, in the alternative, should the Court consider that those provisions could not be severed from the other provisions without altering the substance, to annul Article 17 in its entirety. Poland argued that the fundamental right to freedom of expression and information (art. 11 of the Charter of Fundamental Rights of the EU, “The Charter”) was being violated through an imposition for implementation of automatic preventive mechanism for filtering the content uploaded by users, which would harm their freedoms.

This nuke-bomb was pending over all rightholders heads until last week, when the Court, fortunately, in the case C‑401/19, came up with six grounds on why the obligations in Article 17 not disproportionately restrict the right to freedom of expression and information of users of those services, and dismissed the Polish position. In brief, the reasons why the Court advocated for the maintenance of Article 17 were:

-it follows from Article 17(7) and (9) that, in order to prevent the risk which the use of automatic recognition and filtering tools entails for the right to freedom of expression and information of users of OCSSPs, the EU laid down a clear and precise limit, on the measures that may be taken or required in implementing the obligations laid down in point (b) and point (c), in fine, of Article 17(4) by excluding measures which filter and block lawful content when uploading.

-Article 17(7) requires Member States (“MSs”) to ensure that users in each MS are authorised to upload and make available content generated by themselves for the specific purposes of quotation, criticism, review, caricature, parody or pastiche. 

-Article 17(9) requires OCSSPs to inform their users that they can use works and other protected subject matter under exceptions or limitations to copyright and related rights, provided for in EU law.

-The liability of OCSSPs for ensuring that certain content is unavailable can only be incurred, under point (b) and point (c), in fine, of Article 17(4), on condition that the rightholders concerned provide them with the relevant and necessary information with regard to that content. 

-By stating that the application of Article 17 must not lead to any general monitoring obligation, Article 17(8) provides an additional safeguard for ensuring that the right to freedom of expression and information of users of OCSSPs is observed.

-The first and second subparagraphs of Article 17(9) introduce several procedural safeguards, which protect the right to freedom of expression and information of users of OCSSPs in cases where, notwithstanding the safeguards laid down in those latter provisions, the providers of those services nonetheless erroneously or unjustifiably block lawful content and MSs must ensure that users have access to out-of-court redress mechanisms that enable disputes to be settled impartially and to efficient judicial remedies.

-Article 17(10) supplements the system of safeguards provided for in Article 17(7) to (9), by requiring the Commission to organise, in cooperation with the MSs, stakeholder dialogues to discuss best practices for cooperation between online content-sharing service providers and rightholders, and also to issue guidance on the application of Article 17 in particular, of paragraph 4 thereof.

-MSs must, when transposing Article 17, take care to act on the basis of an interpretation of that provision which allows a fair balance to be struck between the various fundamental rights protected by the Charter. 

For all the above, the Polish objections have been rejected, bringing to an end this chapter of the saga, which we suspect will not be the last one. To be continued…..

David Serras Pereira Licensing and International Manager at UNISON Rights.

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