Last month, we reported on the publication by the European Commission of guidance for Member States on implementation of Article 17 of the Directive, which came into force on 6 June 2019, and which was supposed to be implemented by Member States by 7 June 2021.

Since then, various rights holders in Europe’s creative sectors, including publishers, the recorded and published music industries, film, animation and TV producers, sporting event organisers, TV and radio broadcasters, distributors, film publishers and providers of audiovisual content on physical media and online, have written to the Commission over concerns that the Guidance has moved away from the original objective of the Article.

The signatories say that Article 17 is the result of long political negotiations and rests on a delicate balance between the interests of rights holders, users and online content-sharing service providers (OCSSPs). The Guidance, it says, moves away from that achievement.

As stated throughout the consultation process, the signatories stress their concern over the “artificial and impractical construct of “manifestly infringing” and not “manifestly infringing” uses” in the Guidance. The signatories say these have no foundation in the Directive or the EU acquis. However, they note the Guidance’s confirmation that Member States should not legislate on this construct, but that rights holders and OCSSPs should “progressively fine-tune” their cooperation to accommodate legitimate uses.

The signatories ask Member States to continue to be guided by the text of the Directive and ensure a “faithful implementation” that will ensure the necessary balance between all fundamental rights and legitimate interests at stake. It is “imperative”, they say, that rights holders’ fundamental right to property remains protected, so they are “able to secure a fair return for their efforts”. To access the Commission’s Guidance, click here. To read the creative industries’ letter to the Commission, click here.