The EU Court of Justice (CJEU) has upheld the controversial Article 17 of the Copyright Directive, meaning platforms will be directly liable for – and responsible for removing – copyrighted content uploaded to their sites.
The ruling by the EU’s top court constitutes a dismissal of a case brought by Poland in 2019, in which the court was asked to annul provisions in Article 17 that Warsaw argued would infringe upon freedoms of expression and information.
Article 17 of the 2019 Directive introduces liability on content-sharing service providers for copyrighted content uploaded to their platforms by users. To avoid this liability, providers are obligated to take action to prevent such illegal uploads.
The measure has proved controversial given the likelihood of automated content recognition tools being used to undertake this task. Critics of the obligation have argued that this could also result in the removal of legal content, particularly in cases such as parody, where tools might not be able to make an accurate distinction between what is and is not lawful.
Opposition to the measure was so strong that mass protests against its implementation were seen in a number of countries in 2019.
The overall transposition of the Directive, however, has been slow as only 12 of the 27 member states codified it into national law so far.
The court ruling acknowledged the likely need for automated tools to conduct the kind of content reviews “de facto required” by Article 17 but also recognises the potential infringement on users’ freedoms of expression and information.
“This ruling is very important”, Marco Scialdone, head of litigation at Euroconsumers, told EURACTIV. “It clearly states that the use of automatic filters risks not adequately distinguishing between illegal content and content lawful.”
The court noted that limits have been placed on the measures that platforms may take when it comes to implementing the Article’s obligations, notably, for instance, through guarantees that users can upload parody or pastiche content and that platforms will not implement general monitoring obligations.
It also concluded that the liability regime established by the Directive “has been accompanied by appropriate safeguards by the EU legislature in order to ensure respect for the right to freedom of expression and information of the users of those services” and that a fair balance between these rights and intellectual property has been struck.
Eleonora Rosati, the director of the Institute for Intellectual Property at Stockholm University, told EURACTIV the most important aspect of the ruling was “that the CJEU has held blocking of lawful content disproportionate and, thus, illegal”.
“This is a key clarification, as it rules out the possibility that content is blocked ex-ante and then reinstated only ex-post, after a complaint is resolved.”
The legal implications of the ruling will mainly fall on the member states. Those that have already transposed the directive will have to adapt their national laws accordingly, whereas those that have not will need to put the necessary legal safeguards in place.
Euroconsumers’ Scialdone added that the ruling “imposes a particular diligence on the online content-sharing service providers to be fully respectful of the new regulation foreseen by Article 17 of the directive”.
“Big players will have no particular problems in achieving this reconciliation also because most of the contents will be previously authorised through agreements with the rights holders.”
In reaction to the ruling, a Polish government official told EURACTIV that “for the moment, we can generally say that although the complaint was dismissed, the CJEU took into account a lot of Poland’s arguments.”
Today’s ruling follows an opinion by the CJEU’s Advocate General last June, which recommended that Warsaw’s case be rejected but noted the risk of the “over-blocking” of content, urging that platforms respect certain exemptions and only remove content considered “manifestly infringing”, rather than taking preventative measures in unclear situations.
The decision also builds on another CJEU ruling from last June, which dealt with the conditions under which providers would be exempted from copyright liability and found that platforms would not be considered responsible for illegal content posted by their users unless they actively contributed to making it available.
In this ruling, however, the court noted that its decision did not concern, and therefore did not necessarily invalidate, Article 17.
Angela Mills Wade, executive director of the European Publishers’ Council (EPC), told EURACTIV that the EPC welcomed the ruling, “which fully vindicates the protections laid down in the directive. We now look forward to the full application of the directive”.
Based on the Advocate General’s opinion and this prior case, legal experts are hardly surprised by the new judgment. Still, freedom of expression advocates voiced regret that the use of upload filters in enforcing copyright has not been dismissed entirely.
For former MEP Felix Reda, the ruling “shows that the few EU countries that have introduced specific safeguards against the blocking of legal content have taken the correct approach.”
[Edited by Luca Bertuzzi/Zoran Radosavljevic]