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An End in Sight to The Continuing Saga of the 2019 Copyright Directive’s Article 17?

In his Opinion, on the 15th of July, Advocate General Saugmandsgaard ØE authoritatively upheld the legal integrity of the highly contentious and vastly debated Article 17 of Directive (EU) 2019/790, more commonly referred to as ‘The 2019 Copyright Directive’ or ‘The Digital Single Market Directive’. The Polish Government filed proceedings against the European Parliament and Council (Case C-401/19) to annul this Article in its entirety. The question as to whether Article 17 impedes the public’s right to freedom of expression has already arisen earlier this July in the Joined Cases C‑682/18, YouTube, and C‑683/18, Cyando, however there remains general unease in the various member states as to the real implications of this Article 17.

Article 17’s Significance and Purpose

Article 17 regulates the activity of ‘online content-sharing service providers’ (‘OCSSPs’), which encapsulates most online platforms and social media present in the European Union (‘EU’). The law clarifies that these OCSSPs communicate works to the public (thus infringing copyright) when their users upload infringing subject matter. This has extensive implications on the online world, as it requires any form of OCSSP to limit its content and monitor its user’s uploads severely. 

The Article was primarily introduced to bring an end to the ‘value gap’ argument; as artists and innovators were not receiving payment or being sufficiently recognised for the online use of their work, however online platforms which made these works accessible without authorisation profited handsomely.

As clarified in the Youtube and Cyando ruling, Article 17 is not inviolable. The ‘safe harbour’ provisions (regulated by Article 14 of Directive 2000/31) limit the extent that OCSSPs may found liable, as if generally considered ‘passive’ in the sharing of un-licensed content, the provider should not be held accountable for its’ users’ illegalities.

Clarifying the Elusive Article 17

Poland argued that Article 17 is unlawful due to its burdensome monitoring requirements, which unjustifiably restrict the public’s freedom of expression and information.

The Advocate General disagreed, explaining how the monitoring and filtering obligations incumbent on OCSSPs are, although restrictive, still lawful. These freedoms stipulated in the European Union Charter are not absolute rights. OCSSPs are required to ensure ‘in accordance with high industry standards of professional diligence’ and with best efforts, that no subject matter is made available by their platform which infringes an author’s copyright.

The Opinion examined the compatibility of Article 17 in respect of Article 52(1) of the Charter by focusing on the following three issues:

  1. The limitation at issue is ‘provided for by law’, as it was adopted by the EU legislature and has an appropriate legal basis
  2. The limitation respects the ‘essence’ of the right to freedom of expression, as the filtering required is not general enough to impede the proper functioning of the internet
  3. Provided that Article 17 is interpreted correctly, it complies with the principle of proportionality, as it is appropriate, necessary and proportionate ‘stricto sensu’

Admittedly, the risks of ‘over-blocking’ content, or not receiving authorisation from copyright proprietors to legally upload certain works is an issue which OCSSPs must newly face. The Opinion however argues that this is mitigated by the safeguards provided by Article 17’s seventh, eighth and nineth paragraph. Article 17 establishes the right of legitimate use of protected subject matter, which allow OCSSPs to rely on the general exceptions to copyright infringement, and ensure that copyright protection is not absolute where unreasonable. OCSSPs are required to establish an efficient complaint and redress mechanism to limit the concerns of ‘over-blocking’ online. Furthermore, the Advocate General clarified that Article 17 places no general monitoring obligations, and thus are only expected to block or filter content where infringement is apparent because the copy is ‘identical’ or ‘equivalent’. The unlawfulness must be ‘manifest’ and presumed for the blocking to be justified.

Thus, this Opinion should render Article 17’s grasp over OCSSPs less daunting, as Advocate General Saugmandsgaard ØE delineated exactly how these new obligations should operate, and how no imbalance between the freedom of expression and the protection of copyright should be created. Although the Article may not seem as burdensome as first feared, and although its legality has been justified, it must not be forgotten that this Opinion is only a recommendation, to be followed by the actual ruling of the Court of Justice of the European Union. 

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