Copyright: Advocate General opinion

Background

Article 17 obliges online content-sharing service providers (OCSSPs) to make best efforts to prevent future uploads of user-generated content where rights holders' authorisation has not been obtained.

In June 2021, the European Commission issued guidance on how Article 17 should be implemented (the guidance).

Article 11 of the Charter of Fundamental Rights of the European Union (the Charter) (Article 11) sets out the rights to freedom of expression and information, and freedom of the press.

Article 52(1) of the Charter (Article 52) provides that any limitation on the exercise of the rights and freedoms recognised by the Charter must be provided for by law and respect the essence of those rights and freedoms.

Facts

Poland requested that the ECJ annul Articles 17(4)(b) and 17(4)(c) or, if the ECJ considered that those provisions could not be separated from the remainder of Article 17 without changing its substance, annul Article 17 in its entirety.

Poland argued that Article 17 required OCSSPs to filter content uploaded online by users, making it necessary to introduce preventive control mechanisms, which would infringe the right to freedom of expression and information guaranteed by Article 11.

Decision

The AG advised the ECJ to dismiss Poland's action. EU legislation can, while observing freedom of expression, impose certain monitoring and filtering obligations on online intermediaries, provided that those obligations are circumscribed by sufficient safeguards to minimise the effect of filtering on that freedom. Article 17 contains these safeguards.

While the Directive does not contain explicit references to automatic content recognition tools, Articles 17(4)(b) and 17(4)(c) do force OCSSPs, in many situations, to use these tools. Article 17 concerns OCSSPs which store and give the public access to a large amount of copyright-protected works or other protected subject matter. Where operators manage a significant volume of content, on which substantial volumes of new content can be uploaded at any time, the OCSSPs' employees would not be able to check all of the content uploaded. So, use of an automatic recognition tool is necessary to enable OCSSPs to filter the content to ensure the unavailability of protected works and subject matter identified by rights holders and prevent their future upload to their services.

OCSSPs are required to take measures which meet high industry standards of professional diligence under Article 17(4)(b) and to take account, in that regard, of best industry practices and the state of the art. Recognition tools using digital fingerprinting are already used by various OCSSPs, in respect of several types of content. Other OCSSPs accepting that content on their services are therefore also obliged to put those tools into place in order to filter those categories of content.

In specific cases, it might be contrary to the proportionality principle to require certain OCSSPs to use a content recognition tool, or the tools might not be suitable or effective for certain specific types of protected works and subject matter. However, where appropriate and effective tools were available on the market and were not unreasonably expensive, OCSSPs are required to put them into place to comply with the contested provisions.

The AG agreed with Poland that Articles 17(4)(b) and 17(4)(c) interfered with the freedom of expression and freedom to receive information, as guaranteed by Article 11, of the users of OCSSPs. However, limitations on the exercise of the Article 11 right to freedom expression are permissible provided that the three conditions set out in Article 52(1) are met: that the limitations are provided for by law; respect the essence of that freedom; and respect the principle of proportionality.

Articles 17(4)(b) and 17(4)(c) do not undermine the essence of the right to freedom of expression. The fundamental right to freedom of expression does not preclude all types of monitoring obligation. An online intermediary can be ordered to prevent certain offences by carrying out a targeted monitoring of its service. There is a distinction between general monitoring obligations and those which apply in specific cases. The monitoring obligation imposed on OCSSPs under Articles 17(4)(b) and 17(4)(c) is a specific monitoring obligation, not a general one.

A limitation on the exercise of a fundamental right guaranteed by the Charter will be regarded as proportionate if the disadvantages caused by the measure are not disproportionate to the aims pursued. The AG recognises that the liability regime established in the contested regime involves a significant risk of over-blocking lawful content. In particular, exceptions and limitations to copyright, including those relating to quotations, criticism and review, caricature, parody and pastiche, may cover a significant proportion of the content uploaded by users to OCSSPs' services. The risk of over-blocking is increased by the fact that automatic content recognition tools are not currently capable of identifying the application of an exception or limitation to copyright. A liability regime has to be accompanied by sufficient safeguards to minimise the risks of over-blocking, and so ensure that the extent of the interference with freedom of expression is precisely circumscribed.

Article 17 contains sufficient safeguards to protect the users of sharing services against measures involving the improper or arbitrary blocking of their content, for example, Article 17(7) deals with the right to legitimate uses of protected subject matter, Article 17(8) contains a prohibition on general monitoring obligations, and Article 17(9) contains a complaint mechanism.

OCSSPs are not authorised preventively to block all content which reproduces the works and other protected subject matter identified by rights holders, including those that may be lawful. OCSSPs can only be required to detect and block content which is identical and equivalent to that subject matter, where the unlawfulness seems manifest in the light of information provided by the rights holders. As an infringement is highly probable, this content can be presumed to be illegal. It would therefore be proportionate to block it preventively, with the onus being on the users concerned to demonstrate its lawfulness in the context of the complaint mechanism.

Conversely, in all ambiguous situations such as short extracts from works included in longer content, or transformative works in which the application of exceptions and limitations to copyright is reasonably conceivable, the content concerned cannot be the subject of a preventive blocking measure.

Comment

This opinion will be of interest to copyright practitioners and those advising OCSSPs and rights holders. The opinion was drafted and finalised before the guidance was published; however the AG noted that he disagreed with the guidance where it suggested that rights holders could identify subject matter to be blocked based on an assertion of risk of significant economic harm. This leaves a question mark over whether the guidance is correct in this regard. If the ECJ agrees with the AG, the guidance on implementing Article 17 may need to be revised.

Case: Republic of Poland v European Parliament and another C-401/19.

First published in the September 2021 issue of PLC Magazine and reproduced with the kind permission of the publishers. Subscription enquiries 020 7202 1200.