Poland raises arguments on copyright versus freedom of expression

By Michal Salajczyk


The Court of Justice of the European Union (CJEU) on 10 November heard the case C-401/19, which concerns a crucial part of the new EU Directive on Copyright in the Digital Single Market, namely Article 17.

Article 17 was arguably the most controversial provision of the Directive. It makes online content-sharing platforms (such as YouTube) responsible for instances of copyright infringement committed by their users unless these platforms demonstrate they have “made best efforts to ensure the unavailability” and to “prevent … future uploads” of these works.

In this case, Poland has requested the CJEU to annul these provisions, arguing that they effectively oblige online platforms to introduce preventive control mechanisms for the uploaded content. According to Poland's application, “[s]uch mechanisms undermine the essence of the right to freedom of expression”, thus violating the EU Charter of Fundamental Rights.

The argument that Article 17 effectively obliges platforms to censor content uploaded by their users was widely raised upon the adoption of the Directive. Some critics even called the Directive “ACTA 2”, in reference to the ill-fated multilateral treaty on IP rights enforcement which caused protests worldwide.

In the case before the CJEU, the defendants (the Council of the European Union and the European Parliament) were joined by the European Commission, as well as the governments of Spain and France. During the hearing, each party presented its views on how to interpret Article 17 and any impact it may have on freedom of expression. The interpretations of Article 17 presented by its supporters showed strikingly different readings of the Directive, despite its purpose of harmonising EU law.

For instance, the Commission’s representative defended Article 17 by claiming that it includes merely a “best efforts” clause instead of a “hard” obligation to prevent future uploads of infringing content. In the Commission’s view, EU law includes legal safeguards, which will not limit users’ freedoms because of Article 17.

On the other hand, Spain and France took the position that protecting rights holders from being harmed by copyright infringement outweighs the rights of users. This could be interpreted as meaning that Spain and France do consider Article 17 to be a limitation to freedom of expression. During the hearing, Poland's representative suggested that this sets France and Spain apart from the Commission, arguing that this situation “clearly shows that there is a problem with Article 17 as such”.

In the course of the hearing, Advocate-General Henrik Saugmandsgaard Øe investigated the relationship between two paragraphs within Article 17. Article 17(4) sets out the “best efforts” obligation to prevent future uploads of infringing content, while Article 17(8) states that, “The application of this Article shall not lead to any general monitoring obligation”. The AG’s concern was that in practice platforms will employ filters covering thousands of copyrighted works, effectively introducing a general monitoring regime.

The Advocate-General was requested to issue his opinion on the case on 22 April 2021, with a judgment of the Court expected at a later, unspecified date. This is likely to fall after the deadline for EU Member States to implement the Directive (i.e. 7 June 2021). The timing puts the states in a difficult position, as they have to decide how to deal with Article 17 without knowing the outcome of the case.

For further information contact Michal Salajczyk

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