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Advocate General advises CJEU to reject Polish challenge to Copyright Directive

Heidi Hurdle


United Kingdom

Earlier this month, Advocate General Saugmandsgaard Øe published his much-awaited opinion advising the CJEU to reject Poland's challenge to Article 17 of the new Copyright Directive.

What happened?
On 15 July 2021, Advocate General (AG) Henrik Saugmandsgaard Øe released his opinion in response to Poland's action seeking to annul part of Directive 2019/790, the European Directive on Copyright in the Digital Single Market (DSM Directive). Poland had claimed that Article 17, in particular Articles 17(4)(b) and (4)(c), was not compatible with the rights to freedom of expression and information granted under Article 11 of the EU Charter of Fundamental Rights (Charter). It asked the CJEU to annul sections of Article 17 and, alternatively, if these sections could not be severed, to annul Article 17 entirely.
In short, the AG advised the CJEU to dismiss this challenge. He considered that Article 17 is compatible with the Charter and "contains sufficient safeguards to delimit the scope of the limitation on the exercise of the right to freedom of express resulting from the contested provisions". The AG said that Articles 17(4)(b) and 4(c) could not be severed from the Directive so the only alternative option was to annul Article 17 in its entirety.  (See the AG's opinion and CJEU press release.)
What does Article 17 do?
In brief, Article 17 places primary liability on "online-content sharing service providers" (OCSSPs) for the upload of copyright-protected works by users to their platforms. OCSSPs are required to seek authorisation (in the form of licensing agreements) from rightsholders in order to host copyrighted works.
Poland argued that the provisions of Article 17 could enable censorship as they necessitated OCSSPs's filtering user uploaded online content. This presented an obligation for OCSSPs to introduce preventative control mechanisms and remove any infringing uploads.
See our recent blog for more details about Article 17 and the European Commission's guidance on the provision published just days before the Directive was due to be implemented: European Commission's guidance on Article 17 of new Copyright Directive - more of a hindrance than a help?
What did the AG say?
The AG's opinion is relatively long and detailed. Focusing on a few points of particular interest:
Automatic content tools: the AG considered that although the final version of the Directive did not explicitly refer to automatic content recognition (ACR) tools, Articles 17(4)(b) and (c) did require the use of preventative monitoring. The OCSSPs would be faced with such a large volume of uploaded content that it was difficult to see what alternatives there were to ACR tools. Furthermore, in order to meet the "high industry standards of professional diligence" (Article 17(4)(b)) and follow "best industry practice" (Recital 66), OCSSPs would need to use ACR tools. He noted that there were different types of ACR tools. In conclusion he agreed with Poland that OCSSPs must, in many cases, put into place ACR tools, to filter the content that users upload and, where appropriate, block certain content before it is uploaded.
Interference with freedom of expression and information: the AG agreed with Poland that Article 17 does interfere with Article 11 of the Charter's freedom of expression and freedom to receive information. However, limitations are permissible so long as they follow the three conditions detailed in Article 52 of the Charter. The limitations must:

  • be provided for by law;
  • respect the essence of the rights and freedoms of the Charter; and
  • be in accordance with the principle of proportionality.

The AG considered that Article 17 is compliant with these conditions. In addition, the OCSSPs did not have to comply with general monitoring obligations, which are incompatible with the right to freedom of expression, but rather Article 17 provided for specific monitoring obligations.  In this regard, the AG stressed that OCSSPs cannot become judges of online legality (which would be the case with general monitoring obligations) as they do not have the expertise to decide legally complex questions on copyright.
In terms of proportionality, although the new liability regime in Article 17 could risk over-blocking, the AG was of the view that there were sufficient safeguards in Articles 17(7), (8) and (9) to prevent improper or arbitrary blocking of users' content. Article 17(7) imposed an obligation of result, not to prevent legitimate content. Preventively and systematically blocking content that is within the scope of the expectations and limitations to copyright is not allowed. Legitimate use is therefore protected and should be taken into account ex ante (before the event) by OCSSPs. Article 17(8) is proportionate because it limited the blocking of content to that which is "identical" and "equivalent" to protected works and in such cases, the content is very likely to infringe copyright. Lastly, Article 17(9) imposed a complaint and redress mechanism for users which provided a final safeguard for situations where legitimate content had been blocked mistakenly.
Although the AG delayed publishing his opinion until after the CJEU's YouTube decision and the Commission's guidance had been published, he had drafted it beforehand and added a postscript to it, taking these documents into account. The AG considered that his analysis of Article 17 was compatible with the YouTube decision (see our blog on the CJEU's decision: CJEU rules on the liability of online platform operators). However, he criticised the Commission's approach in the guidance to earmarking specific content to be blocked if its unauthorised online availability could cause significant economic harm to rightsowners.
What happens next?
The CJEU will now start their deliberations over this case and the decision is expected in the coming months. Whilst the AG's opinion is not binding on the court, it is likely to be highly influential. The Commission had acknowledged the pending judgment in its Article 17 guidance and had anticipated that it might need to be reviewed following the judgment. It may be that the controversial earmarking ability is removed or other changes are incorporated.
We will report on further developments as and when they arise.  
 With special thanks to trainee, Sophia Steiger, for her contribution to this blog.

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