As a reminder, the new Directive aims to enhance the freedoms and rights enjoyed by internet users, allow copyright owners to obtain the money they deserve for their work through licensing agreements and clarify the legal framework within which online platforms operate. Whilst there has been little doubt that EU copyright law needed updating for the digital age, there have been some extreme and opposing views on how this was being achieved through the new DSM Directive. Critics were not averse to the idea of rewarding content owners for their works, but some considered the measures adopted to be too onerous or restrictive. Of particular concern was (and still is) Article 17. This sets out a new liability regime for certain online content-sharing platforms and makes them directly liable for copyright-protected content uploaded by users, unless they can demonstrate they have acted in accordance with Article 17(4) (e.g. have made best efforts to obtain rightsholders' authorisation to allow access to copyright-protected content).
In our blog post back in May 2019 (It's official! New Copyright Directive 2019/790), we flagged that the European Commission was expected to provide clarity on the application of the controversial Article 17 and how it would operate in practice, under its obligations under Article 17(10) of the DSM Directive. As required under Article 17(10), the European Commission organised six stakeholder dialogue meetings between October 2019 and February 2020 (attended by rightsholders, platforms and users' representatives) and carried out a written consultation from 27 July to 10 September 2020 in order to discuss best practices between online content-sharing services providers and rightsholders, in order to be able to produce this final guidance.
However, the European Commission only just published its long-awaited guidance (by way of a Communication) at the end of last week, on 4 June 2021, with just a few days to go before today's implementation deadline. We did not expect to be waiting this long for such guidance which claims 'to support a correct and coherent transposition of Article 17 across the Member States, paying particular attention to the need to balance fundamental rights and the use of exceptions and limitations, as required by Article 17(10). The guidance could also be of assistance to market players when complying with national legislations implementing Article 17'. It seems somewhat unhelpful to publish this apparently helpful information at the eleventh hour.
The Article 17 guidance
We will publish a more detailed analysis on the 27-page guidance in due course, but suffice to say that commentators are not best pleased with the finished (for now) product. Some fear that the guidance does not adequately balance the competing interests of platforms, rightsholders and users, but tips the balance in favour of rightsholders and stifles users' rights – quite the opposite of its intention 'to balance fundamental rights…' The guidance, however, is only 'soft law' and not legally binding on the CJEU, but national courts can take it into consideration to decide disputes.
Member States must now notify the European Commission of their national laws transposing the Directive, following which the European Commission will analyse the various texts, but it will have been difficult for some Member States to prepare for implementation without this Article 17 guidance. Indeed, it seems that only two Member States, Hungary and the Netherlands, have fully implemented the Directive. It also appears that Germany, which has always had the most progressive approach in relation to Article 17, has managed to implement this provision in time.
The delays in implementation may also be due, in part, to the pending CJEU ruling in relation to the Polish Government's challenge (C-401/19). The Polish Government has argued that various provisions under Article 17 are incompatible with fundamental rights guaranteed by Article 11 of the Charter of Fundamental Rights of the European Union, in particular the right to freedom of expression and information and that those provisions should be annulled. It may therefore be that we find ourselves with updated guidance, depending on the outcome of that ruling. The AG Opinion on that is expected on 15 July 2021, with the final ruling later in the year. We will of course report back on that.
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