Advocate General Opines That Article 17 Of Copyright In The Digital Single Market Directive (2019/790/EU) Is Compatible With Freedom Of Expression Rules Under Charter Of Fundamental Rights

• Published date: 02 August 2021
• Subject Matter: Intellectual Property, Copyright
• Law Firm: Wiggin
• Author: Mr Ted Shapiro

The case of the Republic of Poland v European Parliament and Council of the European Union (Case C-401/19) concerns Article 17 of the 2019 DSM Copyright Directive. The Advocate General rendered his Opinion on 15 July. He proposes that the Court should find that Article 17 is compatible with freedom of expression and information and therefore dismiss the action brought by Poland. However, he limits the possibility to block content to content that is identical or equivalent to the information provided by rightholders. Essentially, confirming the Commission's general approach to blocking only manifestly infringing content in its arguments to the Court and its draft Article 17 Guidance. However, in a postscript to his Opinion the AG criticizes a new element in the final version of the Commission's Guidance which states "that rightholders should have the possibility to 'earmark' subject matter the unauthorised uploading of which 'could cause significant economic harm to them'".

Article 17 provides that Online Content Sharing Service Platforms (OCSSPs or platforms - as defined in Article 2(6) of the Directive) engage in an act of communication to the public/making available when they give the public access to copyright-protected works uploaded by their users. In such cases, the OCSSPs need authorisation from the relevant rightholders. OCSSPs also do not benefit from the hosting privilege in Article 14 of the E-Commerce Directive. However, Article 17 goes on to provide OCSSPs with a new safe harbour if they can demonstrate they have undertaken:

1. Best efforts to get authorisation (Article 17(4)(a)); and,
2. Best efforts to "ensure the unavailability of specific works...for which the rightholders have provided the service providers with the relevant and necessary information" (Article 17(4)(b)); and in any event
3. Best efforts to undertake takedown and staydown of notified content (Article 17(4)(c).

In the Polish challenge to Article 17, the CJEU is being asked to assess whether imposing the prevention (which invariably requires the use of content recognition tools) (Article 17(4)(b)) and staydown (Article 17(4)(c) obligations on online intermediary service providers is compatible with Article 11 of the Charter.

Advocate General Saugmandsgaard 'e considers that Article 17 amounts to an interference with the freedom of expression of users of online sharing services, but that the interference satisfies the conditions set out in Article 52(1) of the Charter and is...