The Commission's DSMS and CJEU case law: what relationship?

The proposal
(for a directive on copyright
in the Digital Single Market)

As reported by this blog, on 14 September last the EU Commission unveiled its second copyright package, ie a new set of proposals [the first being the proposed regulation on cross-border content portability in December 2015] aimed at improving the existing EU copyright framework as part of its Digital Single Market Strategy (DSMS).

Among the contents of the package, so far what has attracted the greatest degree of attention is the Commission's proposal for a directive on copyright in the Digital Single Market (DSM Directive). 

Much has been said on the ambitiousness (or lack thereof) and merits (or demerits, depending on one's own perspective) of relevant provisions, notably those regarding new mandatory exceptions [Articles 3 to 6], a new related right in press publications [Article 11], and the so called value gap [Article 13].

Discussion has been focusing on the relationship between the new proposed directive and the existing body of legislation [for instance: is Article 13 compatible with the Ecommerce Directive? The DSM Directive is silent as regards how it relates to this piece of EU legislation] and the economic/legal rationale of the various initiatives [do we really need a new related right for press publishers, and will it change anything?].

The DSM Directive and the CJEU: why asking?

What however appears to have been left partly out of the debate is what relationship the DSM Directive has and will have with the existing body of case law of the Court of Justice of the European Union (CJEU).

The question is worth addressing for two main reasons, I think.

First, because the DSM Directive itself attempts a codification of CJEU case law. Examples are Recital 38 [with regard to the 2009 decision in L'Oréal, noted here] and Recital 36 [with regard to the 2015 decision in Reprobel, noted here].

Secondly, because the DSM refers to key concepts but fails to define them. This is particularly the case of 'communication to the public'. For instance, from Recital 38 it is apparent that an obligation for hosting providers that "store and provide access to the public to copyright protected works or other subject-matter uploaded by their users" to conclude licensing agreements with rightholders arises when they perform an act of communication to the public. Similarly, with regard to the press publishers' right, Recital 33 clarifies (?) that this new related right would not go as far as including "acts of hyperlinking which do not constitute communication to the public" within its scope.

Does the proposed directive
re-write certain CJEU case law?

(1) A "codification" of existing CJEU case law: a good attempt?

Starting from the first question, while in principle it is laudable that policy action considers and addresses the implications of judicial decisions, in the case of the DSM Directive this attempt may prove controversial.

Recital 38 states that "[i]n respect of Article 14 [of the Ecommerce Directive], it is necessary to verify whether the service provider plays an active role, including by optimising the presentation of the uploaded works or subject-matter or promoting them, irrespective of the nature of the means used therefor." 

From this it could appear that: optimisation → active role → ineligibility for Article 14 safe harbour

But is this what the CJEU really said in L'Oréal [and previously, in Google France]? Didn't the Court rather state [simplifying] that: active role, eg optimisation → knowledge/control data stored →  ineligibility for Article 14 safe harbour

Rather than codifying L'Oréal - at Recital 38 the Commission has created done something different, in the sense that the knowledge/control element appears to have vanished. Does this mean that falling within Article 14 safe harbour might become increasingly difficult for hosting providers that give access to "large amounts of works"? If it was sufficient for a hosting provider to optimise results [even by means of an automated process and even without the need for any knowledge/control of relevant data] to be outside the boundaries of the safe harbour, then Article 14 would become applicable in the [very tiny, eg possibly only Dropbox-like situations] minority of cases ...

Turning to Recital 36, the Commission appears to link the introduction of a press publishers' right to the outcome of the Reprobel case. But did that case [beneficiaries of private copying levies on printers' sales] have to do with "press publications" or "digital uses" at all? No, so the raison d'être of Recital 36 is a bit difficult to grasp ...

Acts of "communication to the public"

(2) Lack of definition of key concepts

Turning to the second point, the DSM Directive refers extensively to a concept that the InfoSoc Directive itself fails to define, ie "communication to the public".

It has taken the CJEU several judgments to try and make sense of the notion of "communication to the public", but as of today it is unclear whether the subjects referred to in Article 13 of the DSM Directive would be considered as making acts of communication to the public themselves. Yet, the entire Article 13 is built - and almost considers it a given - on the idea that hosting providers may be primarily liable for unauthorised acts of communication ...

In the recent GS Media decision [discussed here, here, here, here], the CJEU confirmed that if one construes communication as merely requiring the making available of a work, ie without the need for any actual transmission, then what needs to be considered is "the indispensable role played by the user and the deliberate nature of its intervention. The user makes an act of communication when it intervenes, in full knowledge of the consequences of its action, to give access to a protected work to its customers, and does so, in particular, where, in the absence of that intervention, its customers would not, in principle, be able to enjoy the ... work" [para 35]

One could wonder whether in the case of hosting platforms, it is the host or rather the user that plays such indispensable role to give access to a protected work.

As I noted here, in light of certain decisions of the CJEU and national courts alike, it may be argued that – in the case of a copyright work made available through the service of a passive online intermediary (host) – the latter would not commit an act of (unauthorised) communication to the public (potentially giving rise to primary liability for copyright infringement), because the role that is ‘indispensable’ in the whole process is the one of the third-party/uploader, rather than that of the hosting provider. 

Should anything be changed
in the proposed directive?

A similar degree of uncertainty also exists in relation to Recital 33, with the addition that in the case of the press publishers' right it is not entirely clear why Article 11 refers to the making available right [ie a sub-species of the right of communication to the public, as the CJEU clarified in C More, noted here] while Recital 33 refers to the right of communication to the public ...

All in all the DSM Directive fails to define what is to be intended by "communication to the public" and the questions becomes whether this would raise uncertainties when determining when a host provider is required - as opposed to merely 'invited' - to conclude licensing agreements.

Conclusion

Unlike legislative proposals advanced in the past, from the DSM Directive it is clear that EU legislature is to give account not only of existing legislation but also CJEU case law and its impact. 

While this demonstrates both the relevance of the CJEU in shaping the EU copyright regime and the attention that different EU institutions devote to each other's activity, it also raises questions regarding the substance of such interplay and resulting 'power struggles'.

On the one hand, the DSM Directive seems to engage in an attempt to codify or even re-write and remedy to 'negative' [negative, but for whom?] outcomes of CJEU cases. Recital 38 and L'Oréal is an example but an even more bizarre one if Recital 36 and Reprobel ...

On the other hand, certain provisions in the DSM Directive [eg Article 13] are built around certain key notions, eg 'communication to the public', that at the legislative level are defined nowhere. The question thus becomes whether the resulting gaps should be filled by referring to relevant CJEU decisions. If this was the case than the results might not be those wished for by certain categories of stakeholders ...