On 10 November 2020, the Grand Chamber of the European Court of Justice (ECJ) heard oral arguments in the case of the Republic of Poland v European Parliament and Council of the European Union (Case C-401/19). This case concerns Article 17 of the 2019 DSM Copyright Directive (the Directive). The Advocate General’s Opinion in the case is still expected on 22 April 2021, according to the ECJ’s calendar. As I attended the hearing, I thought it might be interesting — with AG’s Opinion imminent and given the anti-copyright approach he took in the YouTube/Uploaded case — to share my summary of the hearing and the notes I took on the day. I have never been a big fan of Article 17. I remain concerned about its potential to weaken copyright protection in the EU, but I continually hope to be proven wrong.

My detailed (rough) notes on the oral hearing can be found here.

As a reminder, Article 17 provides that Online Content Sharing Service Platforms (OCSSPs or platforms in this post – 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).

Article 17(7) also says that rightholder and OCSSP cooperation “shall” not result in the blocking of non-infringing content which creates a measure of inconsistency within the body of Article 17. At the same time, Article 17(9) provides for a complaint and redress mechanism. Article 17(6) establishes additional safe harbours for baby and less popular platforms.  Finally, Article 17(8) provides a prohibition on imposing a general monitoring obligation on OCSSPs (compare Article 15 of the E-Commerce Directive).

In May 2019, the Polish government brought an action against Article 17 of the Directive before the ECJ. The complaint refers to Article 17(4)(b) and the second part of (4)(c) (stay down) and alleges an “infringement of the right to freedom of expression and information guaranteed by Article 11 of the Charter of Fundamental Rights of the European Union”. Poland further took the position that, should it not be possible to keep Article 17 without these elements, the whole of Article 17 should be annulled.

In advance of the hearing the ECJ asked a series of questions to the parties (Poland, Council, EP and the interveners European Commission (EC), France, Portugal and Spain). A rough translation of those questions which relate to content recognition technology, the EC’s proposal to flip copyright upside down and fundamental rights are set out below.  All parties except Portugal attended the hearing though France participated by remote link.

The EC argues that Article 17(4) is an obligation of means while Article 17(7) is an obligation of results. This position also featured in the EC’s Consultation Document on its draft Article 17 Guidance (the provision of guidance arises as part of an obligation under Article 17(10) – release of the Guidance has been imminent for a while now).

What will the European Court of Justice (ECJ) make of a case which some see as pitting copyright against the freedom of expression — both fundamental rights (FRs) guaranteed under the Charter of Fundamental Rights of the EU (the Charter). While these rights really should be seen as complementary to one another, where the Court believes there is a potential conflict, it will apply a balancing test. The Polish government argues that clearly freedom of expression must prevail. The intervening Member States (France, Spain and Portugal) argue copyright must win out. The EU institutions in defence of Article 17 of the DSM Copyright Directive appear to occupy ‘middle’ ground, although the European Commission (EC) position (backed by both the Council and the EP it seems) puts copyright exceptions before exclusive rights. That runs counter to existing EU and international copyright law.

It seems untenable that the ECJ would strike down all or even parts of Article 17 particularly at the behest of the current government of Poland. At the same time, the ECJ appeared a bit uncomfortable with at least certain aspects of the structure of Article 17. Who can blame them; it is riddled with inconsistency born of compromise. One judge even raised a question about whether there was free speech on a platform noting that they are “private” (see below under Wahl).   In particular, the Court seemed concerned about the interface between Article 17(4) which requires platforms to undertake best efforts to protect copyright to avoid liability and Article 17(7) which requires that rightholder and platform cooperation to protect copyright must not result in the blocking of non-infringing content. It also seemed that at the time the Court had not yet taken a view on the pending YouTube case (the much-awaited decision was supposed to have popped before Christmas and there is still no date on the ECJ’s calendar). The Court referred to the Advocate General (AG) Opinion in that case in several questions. This is the same AG who will render the Opinion in this case. AG Øe clearly understands the issues very well. However, his approach does not bode well for copyright protection in the EU. He seems to think that notice and takedown is actually an effective tool in this space. He had many questions for the parties. The Court (and Poland and the EC) cited his Opinion in YouTube on several occasions.

The EC believes it has developed a means of salvaging Article 17 – a way out for the ECJ. However, if the Poles and the Member State intervenors agree on one thing, it is that this way out is not in the Directive. The EC argues that Article 17(7) trumps Article 17(4). As such, the Commission’s approach asserts that only “likely” infringing content can be blocked. The Court in its questions to the parties in advance of the hearing has changed “likely” to “manifestly” but the concept is the same (compare also the horrible attack on EU copyright which is being debated in Germany).

After a nearly four-hour oral hearing, it is not possible to rule out at least partial annulment of the Directive, but the more likely outcome appears to be that the Court either grabs the lifeline proffered by the EC or sides with the pro-copyright view put forward by the French. The robust argument put forward quite eloquently by France is that copyright wins and freedom of expression can weather a bit of temporal discomfort. If content is wrongly blocked, there is a mechanism in Article 17(9) to see it safely back up online. It seems clear however that the AG does not share the French view.

Questions to the Parties/Intervenors (unofficial translation from French):

The Council and the Parliament having noted, in substance, that the wording of Article 17 (4) (b) and (c) of Directive (EU) 2019/790 of the European Parliament and of the Council of 17 April 2019 , on copyright and related rights in the digital single market and amending Directives 96/9 / EC and 2001/29 / EC (OJ 2019, L 130, p. 92) does not require adoption by online content sharing service providers, automatic content filtering mechanism (“upload filters”), these parties as well as the other participants in the hearing are invited to express themselves in their pleadings:

– on the possible necessity, in practice, of putting in place such mechanisms for the application of these provisions – the parties and other participants being invited to specify, in this regard, whether, to their knowledge, they exist, in the current state of technology, effective alternative solutions to meet the requirements provided for in these provisions and, that being the case, which ones;

– on the risks associated with such an implementation in the particular context of freedom of information and communication on the Internet, this network being characterized by the speed of the exchange of information;

– on the question of whether Article 17 of Directive 2019/790 allows, impose or, on the contrary, opposes, a system in which only manifestly infringing content would be automatically blocked when it is posted online, while that the content likely to make a legal use of a work could only be so once an agent of the operator has raised their illegal nature – see European Commission, “Targeted consultation addressed to the participants to the speaker dialogue on Article 17 of the Directive on copyright in the digital single market ”, section IV, subsection (ii), as well as

– on the specific measures put in place to mitigate these risks, in particular with regard to the requirements recalled by the Court in its judgment of 16 July 2020, Facebook Ireland and Schrems (C-311/18, EU: C: 2020: 559, point 175[1]).”

[1] “Following from the previous point, it should be added that the requirement that any limitation on the exercise of fundamental rights must be provided for by law implies that the legal basis which permits the interference with those rights must itself define the scope of the limitation on the exercise of the right concerned (Opinion 1/15 (EU-Canada PNR Agreement) of 26 July 2017, EU:C:2017:592, paragraph 139 and the case-law cited). That previous point is as follows: The previous point is “ Furthermore, in accordance with the first sentence of Article 52(1) of the Charter, any limitation on the exercise of the rights and freedoms recognised by the Charter must be provided for by law and respect the essence of those rights and freedoms. Under the second sentence of Article 52(1) of the Charter, subject to the principle of proportionality, limitations may be made to those rights and freedoms only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others.”