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EU court rejects Poland’s opposition to safe harbour reforming article seventeen

By | Published on Wednesday 27 April 2022

European Union

The European Union’s Court Of Justice has ruled that the safe harbour reforming article seventeen of the 2019 European Copyright Directive effectively balances intellectual property and free speech rights in Europe, so any critics of those reforms can just fuck off. Especially the government of Poland. Fuck off, Poland.

For the wider music industry, article seventeen was the most important element of the 2019 directive that amended European Union copyright law.

It specifically increased the obligations of user-upload platforms like YouTube which – the music industry had long argued – routinely abused a copyright safe harbour originally intended for internet service providers and server hosting companies in order to get away with having loads of unlicensed music on their platforms, and/or to force record labels, music publishers and collecting societies into accepting less favourable terms in licensing deals.

Article seventeen proved very controversial when the directive was being negotiated, with critics arguing that – by increasing the obligations of user-upload platforms to filter out copyright infringing content – the new rule was an attack on freedom of expression on the internet. Along the way article seventeen was amended to address those concerns, though few critics were placated.

This meant that even after the directive had been passed, lobbying by the tech sector continued in a bid to water down the new obligations in article seventeen as it was implemented at a national level across the EU. Meanwhile, the government of Poland took the matter to the EU courts seeking to have the the safe harbour reforming element of the directive removed entirely.

Outlining the specific complaint made by the Polish government in that action, the EU courts explained last year: “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”.

That claim was initially considered by the Advocate General of the EU Court Of Justice who last year concluded that the final version of article seventeen had sufficiently dealt with the free speech concerns raised in relation to the new obligations on user-upload platforms. And the EU judges formally considering the case reached that same conclusion yesterday.

In a statement accompanying that judgement, the judges run through various ways in which article seventeen already deals with the concerns raised by the Polish government. For example, the directive specifically states that exceptions to copyright – such as parody – must be respected by any filtering processes, and that rightsholders seeking to ensure their content is not used without licence have to provide the information a platform needs to make that happen.

The court’s statement says: “Article seventeen … provides that users of [user-upload platforms] will be authorised, by national law, to upload content generated by themselves for the purposes, for example, of parody or pastiche and that they will be informed, by the [platforms], that they can use works and other protected subject matter under the exceptions or limitations to copyright and related rights, provided for in EU law”.

Plus, “the liability of [user-upload platforms] for ensuring that certain content is unavailable can be incurred only on condition that the rightholders concerned provide them with the relevant and necessary information with regard to that content”.

And also, “the directive introduces several procedural safeguards, which protect the right to freedom of expression and information of users of the [user-upload platforms] in cases where, nonetheless, the providers of the services erroneously or unjustifiably block lawful content”.

With all that in mind, the court is happy that “the obligation, on [user-upload platforms], to review, prior to its dissemination to the public, the content that users wish to upload to their platforms, resulting from the specific liability regime established in the directive, has been accompanied by appropriate safeguards by the EU legislature in order to ensure respect for the right to freedom of expression and information of the users of those services, and a fair balance between that right, on the one hand, and the right to intellectual property, on the other”.

Although, it did add, “member states must, when transposing article seventeen of the directive into their national law, take care to act on the basis of an interpretation of that provision which allows a fair balance to be struck between the various fundamental rights protected by the charter of fundamental rights”.

Needless to say, the judgement from the EU court has been welcomed by the music industry. And here are some music industry organisations doing just that…

Helen Smith, Executive Chair of the pan-European organisation for the indie music community IMPALA: “We welcome the court’s conclusion that article seventeen is compatible with fundamental rights. The ruling confirms that article seventeen has all the necessary safeguards. This means that the best approach for member states who have not yet implemented article seventeen is to stick to the text of the directive. IMPALA’s view has always been that article seventeen is a balanced outcome and the court’s confirmation of this is welcome. Correctly implemented, article seventeen will rebalance relations between rightholders and platforms, give a recovery boost to the sector at no costs for governments and ensure citizens’ fundamental rights are respected, as well as those of creators”.

Frances Moore, CEO of the International Federation Of The Phonographic Industry: “We welcome today’s judgment by the [EU court] which dismisses the action brought by Poland against article seventeen of the Directive On Copyright And Related Rights In The Digital Single Market. The judgment confirms that the measures in the directive strike a fair balance between the protection of copyright and freedom of expression and information guaranteed by the Charter Of Fundamental Rights Of The European Union. Furthermore, it sends a clear signal to member states yet to transpose the directive into law that they should now implement it faithfully in order to help create a fair and well-functioning online environment for the creative industries in Europe”.

GESAC, the pan-European grouping of song right collecting societies: “This ruling clearly approves the intention of the European legislator … to ensure a more just and fairer legal framework, despite the intimidation and disinformation campaigns led by the very platforms subject to the article seventeen. The legislative victory won with the adoption of article seventeen by the EU institutions against these US-based tech giants was a major step towards creating a more reliable and trustworthy online environment, which has paved the way for more horizontal rules for the intermediaries in the EU with the current Digital Services Act and Digital Markets Act regulations”.

ECSA, the pan-European organisation for composers and songwriters: “ECSA welcomes this judgement which demonstrates that improving the remuneration of creators and fostering freedom of expression are two fundamental objectives that actually support each other, to the benefit of the society as whole. The highest EU court also sends a signal to all EU member states who have not yet implemented the directive: there is no excuse nor time to lose to implement the 2019 Copyright Directive and ensure that music creators can finally be fairly remunerated for their work”.