The EU top court’s Advocate General has advised it to dismiss the legal action Warsaw initiated against the EU Copyright Directive, deeming its provisions compatible with freedom of expression under certain conditions.
Advocate General Henrik Saugmandsgaard Øe put forth his legal opinion on Thursday (15 July), rejecting Poland’s case against Article 17 of the Copyright Directive, but with some important caveats on how to make the use of automated content recognition tools compatible with the fundamental right to freedom of expression.
The opinion of the Advocate General, who acts as a legal adviser for the Court of Justice of the European Union, is not binding but is often indicative of the Court’s final ruling.
“The substantive conclusion that Article 17 is compatible with the Charter is not surprising at all. In fact, it is – rather explicitly – what AG Øe hinted at a year ago in his YouTube Opinion,” said Eleonora Rosati, director of the Institute for Intellectual Property and Market Law (IFIM) at Stockholm University.
Article 17 of the Copyright directive introduces the principle content sharing service providers might be liable if users upload content that breaches copyrights. Providers can be exempted from this liability if they take measures to prevent illegal uploads, which most commonly takes the form of automatic content recognition tools.
Poland challenged the provisions before the Court of Justice, contending that Article 17 should be annulled because it violates freedom of expression.
Freedom of expression
Article 17 was the subject of harsh criticism from campaign groups and NGOs, which argued online platforms would have an incentive to block even legal content when in doubt to avoid any legal dispute.
The Advocate General recognised the risk of ‘over-blocking’, especially in relation to automated tools, but considered the legal safeguards provided in the Directive were sufficient to minimise that risk.
However, the legal advice makes two important caveats.
First, the content sharing platforms need to respect the exemptions from copyright restrictions, which include quotation, criticism, review or parody of cultural products. These exemptions should be respected also in preventive blocking, not redressed following a user complaint.
Second, Saugmandsgaard Øe noted that private providers cannot become judges of the legitimacy of online content. Therefore, they should only limit the blocking to content that is manifestly illegal and abstain from preventive measures in ambiguous situations.
“In his opinion, the Advocate General has made it clear: When implementing Article 17, member states are obliged to limit the use of upload filters to manifestly illegal content. Commercial platforms must not take on the role of a court when it comes to evaluating the legality of user uploads,” said former EU lawmaker Julia Reda.
In these cases, it will be the responsibility of rightsholders to notify the platform or relevant authorities if they deem the content to be illegally uploaded.
For Rosati, the opinion acknowledges that it is for EU law to find a new balance between copyrights and freedom of expression, “while refusing that Article 17 would have a retroactive application (and, so, the argument that it would be a mere clarification of the law as it pre-existed the Directive).”
“Also considering the language employed by the CJEU in last month’s YouTube ruling, it is to be expected that the Court, at least on the core issue of compatibility of Article 17 with the Charter, will follow his AG,” Rosati added.
The Copyright Directive needs to be transposed into national law to come into force. Although the deadline for the transposition was 7 June, only a handful of member states have already done so. One of the main reasons for the delay is that the European Commission issued its Guidance on Article 17 only one working day before the deadline.
The Guidance includes provisions for an ‘earmarking mechanism’, an automated content recognition tool intended to prevent time-sensitive content to be uploaded illegally.
For Caroline De Cock, coordinator at Copyright for Creativity advocacy group, the opinion of the General Advocate “strikes down” the Commission’s earmarking provision.
Many opponents of Article 17 also note that the way the few EU countries that have already transposed the directive do not ensure the caveats highlighted by the Advocate General.
“Only the German transposition contains exceptions to automatic blocking for ‘presumably authorised uses’. In many other countries, national implementations clearly violate freedom of expression and information,” Reda added.
Diego Naranjo, head of policy at European Digital Rights advocacy network, also raised concerns that the caveats for safeguarding freedom of expression should be adopted by member states when transposing the directive in their legal framework.
“As recent cases shown, abusive copyright claims have become the fastest way to block and remove content, contributing to silencing political dissidents, journalists and human rights defenders,” Naranjo said.
[Edited by Zoran Radosavljevic]