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 Øe 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 therefore compatible with the Charter.

The AG says that Article 17 respects the “essence” of freedom of expression and information. Due to the fact that the internet is so important to freedom of expression, public authorities cannot impose a general monitoring obligation on online intermediaries, but the EU legislature can, as in this case, choose to impose certain monitoring obligations on certain online intermediaries in relation to specific illegal information.

Further, the AG said, Article 17 meets the objective of general interest recognised by the Union, since it is intended to ensure the effective protection of intellectual property rights.

As for the principle of proportionality, the AG explains that the EU legislature has a margin of discretion when balancing freedom of expression with respect for intellectual property rights. Therefore, the legislature had for example the power to change the liability regime of online sharing service providers, which originated from the E-Commerce Directive (2000/31/EC), by imposing a different set of obligations on some of them.

Nevertheless, the AG took the view that there is a significant risk in the new regime of “over-blocking”, resulting in lawful information being blocked, as online sharing service providers may, in order to reduce any risk of liability, lean towards preventing all content that might infringe copyright being uploaded, including content that is in fact making legitimate use of a protected work as a result of copyright exceptions and limitations. The use of automatic content recognition tools increases that risk, the AG said, since those tools are not able to understand the context in which copyright works are reproduced. Therefore, when drafting the Directive, the EU legislature had to provide sufficient safeguards to minimise that risk.

In the AG’s opinion, Article 17 contains such safeguards:

1. Article 17(7) recognises that users of online sharing services can make legitimate use of copyright works, including pursuant to copyright exceptions and limitations; in order for that right to be effective, providers of online sharing services are not allowed to preventatively block all content that reproduces a copyright work; it is not sufficient that users have the option of pursuing a complaint for their legitimate content to be re-uploaded after it has been preventatively blocked; and
2. Article 17(8) provides that Member States cannot impose a general monitoring obligation on online sharing service providers who cannot be turned into judges of online legality, responsible for coming to decisions on complex copyright issues.

Consequently, the AG said, online sharing service providers can only detect and block content that is “identical” or “equivalent” to a copyright work that has been identified by the rights holder, i.e. content that is clearly unlawful in the light of information provided by the rights holder. Further, where it is not clear, e.g. short extracts of longer works, “transformative” works, etc., where it is reasonably foreseeable that copyright exceptions and limitations might apply, the content should not be preventatively blocked. The risk of “over-blocking” is therefore minimised, the AG said, and rights holders will have to request the removal or blocking of such content through substantiated notifications or through the courts. Thus, the AG’s approach, which appears to put exceptions before exclusive rights, in essence turns copyright on its head (Case C-401/19 Republic of Poland v European Parliament and Council of the EU EU:C:2021:613 (Opinion of Advocate General) (15 July 2021) — to read the Opinion in full, click here).