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EU Advocate General rejects calls from Poland to annul safe harbour reform in Europe

By | Published on Monday 19 July 2021

European Union

The Advocate General of the European Union’s Court Of Justice last week said that, in his opinion, the safe harbour reforming article seventeen of the 2019 European Copyright Directive does not breach the EU’s Charter Of Fundamental Rights. That opinion was reached in response to efforts by Poland to have the somewhat controversial element of the directive annulled.

For the wider music industry, article seventeen was the most important reform in the directive. It increases the obligations of user-upload platforms whose users upload unlicensed content.

The music community has long argued that many such platforms have abused the copyright safe harbour – which restricts the liabilities of internet companies whose users infringe copyright – in order to avoid getting music licences at all, or to secure licences that pay record companies, music publishers and collecting societies below market rates. Article seventeen aims to stop that.

However, the proposed reforms proved controversial while the directive was being negotiated. Of particular controversy was the new obligation on safe harbour dwelling user-upload platforms to filter content being uploaded in a bid to block infringing material.

Although many such platforms already do that anyway, often for commercial as well as legal reasons, some argued that forced filtering would negatively impact on the freedom of expression of internet users. Including, specifically, the free speech rights guaranteed by the Charter Of Fundamental Rights Of The European Union.

Although the reforms were ultimately voted through by the EU Council and European Parliament, opponents of article seventeen have continued to lobby hard to try to get the impact of the new rules watered down. Or, in the case of the government of Poland, entirely deleted.

The EU court explained last week: “The Republic Of Poland brought an action before the Court Of Justice for annulment of article seventeen of Directive 2019/790. According to the applicant, that article infringes the freedom of expression and information guaranteed in article eleven of the Charter Of Fundamental Rights Of The European Union”.

“In assessing the lawfulness of article seventeen of the directive, the court will therefore have to determine whether, and if so under what conditions, imposing monitoring and filtering obligations on online intermediary service providers is compatible with that freedom”.

To help the court with all that determining, Advocate General Henrik Saugmandsgaard Øe has been thinking very hard about article seventeen of the copyright directive and article eleven of the charter, and whether or not they conflict. And he now reckons that the court should rule that they can both co-exist.

The court confirmed that Øe “proposes that the court should find that article seventeen of directive 2019/790 is compatible with freedom of expression and information and therefore dismiss the action brought by Poland”.

“In this respect, the Advocate General considers that the contested provisions do entail an interference with the freedom of expression of the users of online sharing services. Nevertheless, in his view, that interference satisfies the conditions laid down in article 52(1) of the charter and is therefore compatible with the charter”.

Basically the AG is saying that article seventeen is about balancing free speech rights and intellectual property rights, and while that is tricky, EU lawmakers got the balance right.

The AG does acknowledge concerns that the obligatory filtering of content by user-upload platforms could result in over-blocking, where material that does not, in fact, infringe copyright – possibly because of a copyright expiation – gets blocked. However, he reckons that measures in the directive to deal with that problem are sufficient.

Under the directive platforms, the court says, “must only detect and block content that is ‘identical’ or ‘equivalent’ to the protected subject matter identified by the rightholders, that is to say content the unlawfulness of which may be regarded as manifest in the light of the information provided by the rightholders”.

“By contrast, in all ambiguous situations – short extracts from works included in longer content, ‘transformative’ works, etc – in which, in particular, the application of exceptions and limitations to copyright is reasonably foreseeable, the content concerned should not be the subject of a preventive blocking measure”.

“The risk of ‘over-blocking’ is thus minimised”, it goes on. “Rightholders will have to request the removal or blocking of the content in question by means of substantiated notifications, or even refer the matter to a court for a ruling on the lawfulness of the content and, in the event that it is unlawful, order its removal and blocking”.

So, good news for supporters of the EU safe harbour reforms. Judges in the court must now make their own ruling on Poland’s bid to axe article seventeen, though AG opinions are usually very influential in that process.

Welcoming the AG’s conclusion – although not all elements of his full opinion – Helen Smith, Executive Chair of IMPALA, the pan-European trade group for the independent music community, told CMU: “We welcome the opinion that the European court should rule that article seventeen is compatible with freedom of expression and should not be annulled. As for the detail, we don’t agree with some of the conclusions but as it’s the court’s view that counts, we will wait for the ruling to come out to comment on detail”.