16 July 2021CopyrightRory O'Neill

EU Copyright Directive compatible with free expression, AG finds

The EU’s highest court should reject Poland’s challenge to controversial copyright reforms which imposed liability on tech platforms for third-party content, a legal adviser has said.

In an opinion issued yesterday, July 16, advocate general (AG) Henrik Saugmandsgaard Øe said that the 2019 Copyright Directive was compatible with freedom of expression and information.

Poland had wanted the controversial Article 17 of the Copyright Directive struck down on the basis that it could enable online censorship. The law effectively requires tech platforms to filter content uploaded by their users and remove infringing material.

Article 17 was among the most divisive elements included in the major copyright reforms. Critics, including tech platforms, warned it would have a negative impact on internet freedom and force them to excessively monitor and filter content in order to meet their obligations. Rights owners, however, argued that tech platforms had to do more to detect and remove copyright-infringing content online.

The AG’s opinion is not binding on the Court of Justice of the European Union (CJEU), which will now begin its deliberations in the case, but could be influential in forming the court’s opinion.

The AG found that while Article 17 marks an “interference” with freedom of expression, it is justified under the Charter of Fundamental Rights of the European Union. Saugmandsgaard Øe acknowledged that the Copyright Directive contains a “significant risk of ‘over-blocking’ lawful information”. Tech platforms may choose to block whole swathes of lawful content to avoid opening themselves up to any potential liability challenges, he observed.

But in the AG’s opinion, the Copyright Directive contained sufficient safeguards to mitigate against this risk. For example, platforms should avoid “preventive blocking measures” for short extracts of copyright-protected works, the AG said.

“The EU legislator stressed that Article 17 of Directive 2019/790 should not impose a general monitoring obligation on sharing service providers. In this respect, according to the AG, those providers cannot be turned into judges of online legality, responsible for coming to decisions on complex copyright issues,” said a CJEU press statement.

“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,” it added.

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