Just a few months away from the expiry of the deadline for the transposition by member states of the new EU copyright directive, there is already the first judicial pronouncement on the legality or otherwise of the contentious article 17.
Article 17 of the new EU directive on copyright and related rights in the digital single market is indeed compatible with the freedom of expression and information guaranteed by the EU’s Charter of Fundamental Rights, Advocate General Henrik Saugmandsgaard Øe has opined.
This opinion comes in the course of proceedings filed by Poland before the Court of Justice of the European Union (CJEU) for the annulment of parts of article 17 of this new directive right after the directive’s adoption in May 2019. Poland’s main point of contention revolves around whether the said article 17 is compatible or otherwise with the freedom of expression and information guaranteed by the Charter of Fundamental Rights of the EU.
Article 17 establishes the principle that, as a rule, providers of online sharing services are directly liable when protected subject matter is illegally uploaded by users of their services. They are hence obliged to actively monitor the content uploaded by users to prevent the uploading of protected subject matter which the right holders do not wish to make accessible on those services.
The scope of the action filed by Poland is therefore for the CJEU to determine whether, and if so, under what conditions, imposing monitoring and filtering obligations on online intermediary service providers is compatible with the above-captioned freedom of expression and information.
The EU legislator can impose certain monitoring obligations, in respect of specific illegal information, on certain online intermediaries
The AG has acknowledged that the contested provisions do entail an element of interference with the freedom of expression of the users of online sharing services. Nevertheless, in his view, the contested provisions respect the ‘essence’ of freedom of expression and information.
The AG affirmed that since the internet is an important tool for freedom of expression, public authorities cannot oblige online intermediaries to generally monitor content shared or transmitted through their services in search of any kind of illegal or undesirable information. Nonetheless, the EU legislator can, as it did in article 17, impose certain monitoring obligations, in respect of specific illegal information, on certain online intermediaries.
Furthermore, in the AG’s view, article 17 of the directive meets an objective of general interest recognised by the Union, since it is intended to ensure effective protection of intellectual property rights.
The AG opined that the EU legislator has also made provision for sufficient safeguards to ensure respect for the principle of proportionality. It did so by recognising the right of users of online sharing services to make legitimate use of protected subject matter. This includes the right to rely on exceptions and limitations to copyright. Hence, providers of online sharing services are not allowed to preventively block all content reproducing the protected subject matter identified by the right holders, including lawful content.
In the AG’s view, article 17 also recognises that there is no general monitoring obligation on sharing service providers. The AG acknowledged that such providers cannot be turned into judges of online legality, responsible for coming to decisions on complex copyright issues. Hence, sharing service providers are only expected to detect and block content that is ‘identical’ or ‘equivalent’ to the protected subject matter identified by the right holders.
In practical terms, the service providers’ obligation, therefore, subsists only in so far as content, which is manifestly unlawful, in the light of the information provided by the right holders. In all ambiguous situations, such as in the case of short extracts from works included in longer content, particularly where the application of exceptions and limitations to copyright is reasonably foreseeable, the content concerned should not be the subject of a preventive blocking measure. In this way, the risk of ‘over-blocking’ is thus being minimised.
The AG also highlighted the fact that right holders will have to request the removal or blocking of the content in question by means of substantiated notifications, or possibly refer the matter to a court for a ruling on the lawfulness of the content or otherwise. All these factors militate towards a finding that article 17 is indeed not in breach of the freedom of expression and information, the AG concluded.
Though the AG’s opinion is not binding on the CJEU, the first indication is that the contentious article 17 is here to stay. What is for sure is that the tumultuous beginnings of this article seem to be far from behind us and the door has been left wide open for rife litigation on its interpretation.
Mariosa Vella Cardona, freelance legal consultant