Copyright on the Digital Market – Opinion of the European Court of Justice on the Polish case

Advocate General Saugmandsgaard Øe Article 17 Directive 2019/790 on copyright and related rights in the Digital Single Market [1] is compatible with the freedom of expression and information guaranteed in Article 11 The Charter of Fundamental Rights of the European Union.

Poland has applied to the Court for annulment Article 17 Directive 2019/790. According to our government, this provision violates the freedom of expression and information guaranteed in Article 11 The Charter of Fundamental Rights of the European Union (‘the Charter’).

In the context of the verification of legality Article 17, It will therefore be for the Court to determine whether and, where appropriate, under what conditions the imposition on online intermediaries of supervision and filtering obligations is compatible with that freedom.

The Union shall have the right to supervise illegal information

In its Opinion delivered today, Advocate General Henrik Saugmandsgaard Øe proposed that the Court decide that Article 17 Directive 2019/790 is compatible with freedom of expression and information, and therefore dismissed the complaint lodged by Poland.

Content-sharing service providers should only detect and block content that is ‘identical’ or ‘equivalent’ to protected items identified by rightholders, i.e. content which cannot be considered to be lawful in the light of information provided by those rightholders

Article 17 Directive 2019/790 on copyright and related rights in the Digital Single Market, lays down the principle that online content providers (the so-called "Web") 2.0”) are directly responsible where protected objects (works, etc.) are unlawfully placed by users of their services.

However, the service providers concerned may be exempted from that responsibility. To this end, they shall in particular be required, in accordance with the provisions of that Directive.

Article 17 [2] , to actively supervise content posted by users in order to prevent online placement of protected subject-matter which rightholders do not want to make available on those services. This preventive surveillance should in many cases take the form of filtering using automatic content recognition tools.

The Advocate General considers that the provisions under appeal by Poland actually result in ‘intervention’ in the freedom of expression of users of online content provision. Nevertheless, the intervention fulfils the conditions laid down in Article 52(1) the cards, and therefore is compatible with this instrument.

Recall that this article refers to the principle of proportionality of law and states that “any restriction on the exercise of rights and freedoms recognised in this Charter must be governed by law and respect the essence of these rights and freedoms.

Subject to the principle of proportionality, restrictions may be imposed only if they are necessary and indeed meet the objectives of general interest recognised by the Union or the need to protect the rights and freedoms of other persons.’

The Advocate General considers that the contested provisions respect the ‘being’ of freedom of expression and information. While, given the particular importance of the Internet for this freedom, public authorities cannot oblige online intermediaries to supervise the content exchanged and transmitted through their services, in view of the search for any illegal or undesirable information, the Union legislature may, as in the present case, decide to impose specific obligations on certain online intermediaries to supervise certain details of an illegal nature.

The Advocate General also noted that Article 17 Directive 2019/790 it meets the general interest objective recognised by the Union as it aims to ensure effective protection of intellectual property rights.

With regard to respect for the principle of proportionality, the Advocate General explained in particular that the Union legislature has a wide discretion to reconcile freedom of expression with respect for the intellectual property rights of rightholders. In this context, the legislator may have chosen to change the liability regime applicable to online content providers, which was initially due to Directive 2000/31 on electronic commerce [3] , imposing supervision obligations on some of these entities.

Protection against excessive blocking and copyright

However, this new system poses a major threat to the "excess blocking" of legitimate information.

Online content providers may tend, in order to avoid the risk of liability, to prevent any content which reproduces protected objects designated by rightholders, including content which lawfully uses such objects, such as those covered by exceptions and limitations to copyright.

The use of automatic content recognition tools increases this risk as these tools are unable to understand the context in which such subject-matter is multiplied. The Union legislature should therefore provide sufficient guarantees to minimise that risk.

According to the Advocate General, such guarantees were laid down in Article 17 Directive 2019/790.

After first, the Union legislator has granted users of online content services the right to lawfully use protected subject-matter, including the right to rely on exceptions and restrictions in relation to copyright [4].

In order to ensure that this right is effective, providers of these services are not authorised to block, in a preventive manner, all content which reproduces the subject-matter covered by protection, as indicated by rightholders, including legitimate content.

It is not sufficient for users to have, within the framework of the complaint and redress mechanism, the possibility to re-insert their legitimate content online after such preventive blocking.

Second, the EU legislator stressed that Article 17 Directive 2019/790 should not impose on service providers the provision of general supervision obligations [5] . For this reason, the Advocate General does not believe that those suppliers can be made online compliance arbitrators responsible for resolving complex copyright issues.

Consequently, content-sharing service providers should only detect and block content which is ‘identical’ or ‘equivalent’ to protected items identified by rightholders, i.e. content whose illegality can be considered obvious in the light of the information provided by those rightholders.

On the other hand, in all ambiguous situations – short passages of works contained in longer texts, transformational works, etc. – in which in particular the application of exceptions and restrictions on copyright would be reasonably imaginable, the content under consideration should not be the subject of a preventive blocking measure.

The risk of over-blocking is thus minimised. The rightholders should request that the content in question be removed and that it be blocked by legitimate objections, and even referred to the court so that the court can rule on the legality of the content and, if it is unlawful, order its removal and blocking.