29 July 2021 | By “Marten Männis”
Policy & Regulation
Lack of transposition of Copyright Directive starts infringement proceedings
The European Commission has started its infringement proceedings against 23 EU Member States regarding their implementation of Directive 2019/790/EU on copyright and related rights in the Digital Single Market. The letters of formal notice, the first step in the proceedings, were sent as most of the EU Member States have yet to fully transpose the Directives into national legislation, which entered into force in June 2019 and for which the transposition deadline was on 7 June.
The Directive has been hotly debated amongst EU Member States and various interest groups, with Article 17 specifically seen as a point of contention. The Article concerns the use of copyrighted content by online content-sharing platforms, such as YouTube. Pursuant to Article 17, Member States must ensure that online content-sharing service providers obtain authorisation from the respective copyright holders if copyrighted works are published on their platforms. If no such authorisation is granted, the service providers are liable for unauthorised acts of communication to the public, unless the platform disables access to said copyrighted works in an expedited manner. This essentially means that the platforms in question would have to implement effective filters to prevent users from uploading copyrighted materials unlawfully.
Opposition to the Article has been manifold – some groups have called it disastrous, others see it as a dangerous precedent whereby authoritarian governments can abuse the system. Poland has taken legal proceedings against the Article, which are currently ongoing. The Polish contention alleges an infringement of the right to freedom of expression and information guaranteed by Article 11(1) of the Charter of Fundamental Rights. The non-binding opinion of the Attorney General for the ongoing case concluded that though the Article would limit the exercise of the right to freedom of expression and information, the Article nevertheless satisfies the conditions laid out in Article 52(1) of the Charter, which concerns the principle of proportionality for the scope of the rights guaranteed under the Charter. The AG does highlight Article 17(8) of Directive 2019/790, which prohibits any sort of general monitoring pursuant to the copyright filtering obligations.
In its Communication to the European Parliament and the European Council, the Commission issued guidance on the application of Article 17. The Communication reiterated that an online content-sharing service provider is defined as an information society service provider of which the main or one of the main purposes is to store and give the public access to a large amount of copyright-protected works or other protected subject matter uploaded by its users, which it organises and promotes for profit-making purposes. Article 2(6) of the Directive provides for a non-exhaustive list of providers and services exempt from the scope of Article 17, such as not-for-profit encyclopaedias and not-for-profit educational and scientific repositories. Furthermore, the term authorisation is left open-ended by design, which enables Member States to provide for different authorisation models. Similarly, the term ‘best efforts’, regarding the attempt made by a content provider to obtain an authorisation, is seen as an autonomous notion of EU law, meaning that Member States should take the principle of proportionality into consideration when assessing whether a service provider took relevant steps to obtain an authorisation.
The Member States who have yet to fully transpose the Directive into national legislation have two months to respond and comply. Otherwise, the Commission can send a reasoned opinion, which is a formal request to comply with EU law. The communication includes the reasoning as to why the Commission considers that the Member State is breaching EU law and requires them to inform the Commission of the measures taken to rectify it. If the country still does not comply within a specified period, usually two months, the Commission can decide to refer the matter to the Court of Justice. Beyond that the Commission can ask the court to impose financial penalties.