Intellectual property

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Shortly after the Commission published its guidance on article 17 of Directive 2019/790 of the European Parliament and of the Council of 17 April 2019 on copyright and related rights in the digital single market (the “Directive on Copyright in the Digital Single Market”), already discussed in this blog post, Advocate General Henrik Saugmandsgaard Øe published his conclusions on case C- 401/19, in which the Republic of Poland requested the partial or total invalidity of article 17 of the Directive on Copyright in the Digital Single Market because, in its opinion, it is incompatible with the freedom of expression.

This case faces off the two fundamental rights that caused much controversy when the Directive on Copyright in the Digital Single Market was being processed: intellectual property and freedom of expression.

The opinion is full of details and points for reflection and is well worth a read. Nonetheless, I will try to summarize the Advocate General’s main conclusions.

The proceedings

The dispute pertains to whether obligations to make “best efforts” (rectius, “best efforts”, as reported in here) that article 17.4 imposes on online content-sharing service providers (“OCSSPs”) under paragraphs (b) and (c) to release them from liability for content uploaded by their users involves forcing OCSSPs to block content that could infringe copyright and similar rights in a way that may affect the very essence of the users’ freedom of expression. Those sections of the article require OCSSPs to show (b) that they have made, in accordance with strict industry standards of professional diligence, their best efforts to ensure the unavailability of specific works and other subject matter whose rightholders have provided service providers with the relevant and necessary information; and (c) that, after receiving a sufficiently substantiated notice from the rightholders regarding specific content that has been uploaded, they have made their best efforts to prevent it being uploaded in the future.

In the Advocate General’s opinion, article 17 contains sufficient safeguards to ensure that, even if it is clearly affected by the new balance established by EU lawmakers as it comes up against intellectual property, freedom of expression is not distorted or affected in its essence.

Correct interpretation of article 17 of the Directive on Copyright in the Digital Single Market

According to the Advocate General, interpreting article 17 correctly as a whole, OCSSPs should only block ex ante content that is clearly illegal (that breaches copyright or similar rights). The Advocate General contends that content is clearly illegal when its unlawfulness:

  • has been declared by a court, including both identical and equivalent (containing insignificant alterations that do not distinguish it from the original in the eyes of the general public, such as, for example, a change in format, reversing the image or changing its speed in an attempt to circumvent automatic recognition tools) content to the content declared illegal; or
  • is obvious from the outset, without the need for contextualization or additional information (but the Advocate General clarifies that OCSSPs cannot be expected to make independent assessments of content’s lawfulness, as they have neither the authority nor the independence, nor, perhaps, the capacity, to do so).

When the unlawfulness is not clear, OCSSPs not only must not but also cannot block the content ex ante. According to the Advocate General, that is the case when the content uploaded by users contains short extracts of the protected work or subject matter, or when it is transformative. The Advocate General disagrees with the Commission on one relevant point here: the Commission believes that if rightholders have justifiably designated content particularly relevant and time-sensitive (for example, pre-released movies, live broadcasts), even if it is not clearly illegal in itself, an ex ante human review may be appropriate, if it is possible and proportionate. According to the Advocate General, however, this is not possible without infringing the preventive monitoring prohibition and, ultimately, the essence of the freedom of expression. Only clearly illegal content can be blocked ex ante.

Nonetheless, content that is not clearly illegal may be blocked ex post as a result of an individual and reasoned notice from the rightholders. The complaint and redress procedures are available in those cases.

The Advocate General’s interpretation is based on the fact that, in his opinion, it balances the rights at stake and respects the essence of the freedom of expression, as it takes into account both the best efforts obligations imposed on the OCSSPs to release them from liability, which are obligations of diligence, and two obligations as to results: (i) legal content (that does not infringe copyrights or similar rights, for example, because an exception or limitation applies, the content is not in the public domain or it does not meet the originality threshold) must not be blocked, and (ii) applying article 17 must not create a general supervisory obligation.

Ultimately, the Advocate General is categorical that the EU legislature requires OCSSPs to prioritize the freedom of expression in case of doubt. In other words, the EU lawmaker prefers “false negatives,” i.e., illegal content being available, than “false positives,” i.e., legal content being blocked.

Some practical observations from the Advocate General

Rather than simply providing a purely theoretical analysis, the Advocate General offers some practical guidance. All the parties involved in the proceedings (the Republic of Poland, the European Parliament and the Council, as parties, and the Commission and the governments of Spain and France, as intervening parties) acknowledge that the only way for OCSSPs to make best efforts required under article 17 is to use automatic content recognition tools. However, those tools help detect content (a point of fact) rather than infringements (which requires a legal assessment). Therefore, the Advocate General proposes a possible practical solution: on the one hand, adapting those tools to include parameters or thresholds under which it is reasonable to believe that an exception or limit applies (e.g., the duration of the copyright-protected or similarly protected content used) and, on the other hand, allowing users to state from the outset that they consider their content protected by a limit or exception.

Pending transposition

No official text transposing article 17 in Spanish domestic law has been published to date. It remains to be seen what impact these conclusions and the Commission’s guidance will have.

Author: Álvaro Bourkaib

This post is also available in: Español

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alvaro.bourkaib@cuatrecasas.com