Today, the Court of Justice of the European Union (CJEU) delivered its long-awaited and highly anticipated judgment in Case C-401/19. The case addresses the Polish challenge regarding compliance of Article 17 of the 2019 Directive on copyright and related rights in the Digital Single Market 2019/790 (CDSM) with fundamental rights. In short, the court ruled that Article 17 is valid and compatible with fundamental rights (see official press release and judgment). In this blog post, we offer an overview of Article 17, briefly analyze the CJEU judgment, and provide general comments.
Article 17 is a controversial article, creating an intermediary liability framework for online content sharing service providers (OCSSPs). It imposes a monitoring obligation, which many have argued translates in practice as OCSSPs using “upload filters” to moderate content so as to avoid copyright infringement. The obligation for platforms to proactively filter and block user communication (under the risk of being directly liable for copyright infringement committed by their users) raises many concerns. Because copyright infringement determinations are very often sensitive to context, there is a significant risk of overblocking user content — an outcome with adverse effects on the exercise of freedom of expression, access to information and other fundamental rights of users. Upload filters are highly problematic as they generally have a chilling effect on platform users and profoundly undermine their fundamental freedom to share.
While June 2021 had marked the deadline to transpose Article 17 into national legislation, many Member States have yet to do so. Those that have, have taken divergent approaches, in part a result of the belated (June 2021) European Commission’s implementation guidance, based on a stakeholder dialogue.
At stake in this CJEU case was whether Article 17 (or parts thereof) violate fundamental rights, in particular Article 11 of the EU Charter of Fundamental Rights and the principle of freedom of expression and information. Poland argued that it did violate fundamental rights. Communia’s report from the November 2020 hearing provides a good overview of the main arguments. In brief, the issue arises because while Article 17 provides that this monitoring obligation should not result in the prevention of the availability of uploaded works that do not infringe copyright, there is a lack of clarity around such “user safeguards.”
It comes as no surprise that the court followed the opinion of Henrik Saugmandsgaard Øe, appointed Advocate General (AG) in C-401/19 (see Communia’s summary of the opinion). In brief, AG Øe advised the CJEU to rule that Article 17 is compatible with the EU Charter of Fundamental Rights. He argued Article 17 should not be annulled, to the extent that monitoring obligations of online content sharing service providers must be circumscribed by sufficient inherent safeguards so as to minimize the impact of the content filtering activities on users’ freedom of expression and information. In a nutshell, the judgment states that while filtering technologies do restrict fundamental freedoms, Article 17 includes sufficient and appropriate safeguards to protect users’ freedom of expression/information. Importantly, the Court clarified that uses allowed under exceptions and limitations are users’ “rights” (in line with the AG’s position), that any intervention by OCSSPs must be triggered by relevant and necessary information by rights holders, and that general monitoring is prohibited.
This judgment provides some important legal certainty in what remains a legally complex and confusing area of copyright law. It remains to be seen how Article 17 will be applied in practice in a way that truly upholds fundamental rights in all Member States. Even so, what is clear is that the ruling will have to be considered by Member States and integrated into their domestic transposition process as they continue to implement CDSM. It will also likely influence the course of the Digital Services Act (DSA) implementation, where intellectual property rights enforcement will also need to be balanced with fundamental freedoms, as noted by the IPKat.
Creative Commons CEO Catherine Stihler said: “Creative Commons remains opposed to filtering mandates, which are overbroad, speech-limiting, and bad for both creators and reusers. At CC, we will also continue to support better, open sharing of content on the internet and to uphold people’s freedom of expression and freedom to share.”