DSM Directive Series #5: Does the DSM Directive mean the same thing in all language versions? The case of 'best efforts' in Article 17(4)(a)

Bruno made
his 'best efforts'
to stick to his diet ...

A couple of days ago, The IPKat posted about a (gross) Italian mistranslation of Article 17 of the DSM Directive 2019/790 (formerly known as Article 13), which seems to require online content sharing service providers (OCSSPs) to prevent the availability of all unlicensed subject matter, irrespective of whether it is infringing or not.

I have been informed that this error will be corrected soon, as it is clearly an incorrect translation of the adopted text.

As a follow-up to this, I took a closer look at the Italian translation of Article 17, and was a bit surprised when I saw that the phrase 'best efforts' in Article 17(4)(a) had not been translated as 'migliori sforzi' but rather as 'massimi sforzi'.

I shall try and clarify what I mean.

If we look at the English version of the DSM Directive, we see that a softer regime is in place for those OCSSPs who, together with satisfying other conditions [see here], have "made best efforts to obtain an authorisation" from relevant rightholders for the making available of protected subject matter. 

Similarly, the French version requires OCSSPs to have made "meilleurs efforts pour obtenir une autorisation".

However, the Italian version requires OCSSPs not just to have made their 'best' efforts, but actually their 'greatest' efforts. 

'Best' vs 'Greatest'

While in practice there might be little difference between 'best' and 'greatest', from a grammatical (and conceptual) standpoint they are not synonyms. 

'Best' is the superlative of 'good', 'greatest' is the superlative of 'great': the latter requires something more than the former. 

In addition, it can be considered that, while 'best' entails a qualitative assessment of one's own efforts ('they did their best'), 'greatest' mandates more of an objective assessment of one's own efforts ('they could not do more than what they did').

What about the other language versions?

So, 'I couldn't help but wonder' whether other language versions of Article 17(4)(a) mandated something other than the making of 'best efforts'/'meilleurs efforts'. 

Thanks to the collective efforts of several IP enthusiasts who happened to use Twitter yesterday, it appears that the answer is in the affirmative.

While some language versions correspond to the 'best efforts'/'meilleurs efforts' concept, others entail something else: so, for instance, the Spanish version requires the making of 'greater' efforts, while the Bulgarian, Czech, Dutch, German, Hungarian, Latvian, Lithuanian, Polish, Portuguese, and Romanian versions require that 'all efforts' be made to obtain a licence. Also the Swedish version requires 'all efforts' be made, but the way the obligation is phrased appears to entail a direct proportionality between the ability to make such efforts and the efforts actually made. The latter seems to be more a matter of (objective) ability rather than subjective approach.

The table below shows a few different language versions of Article 17(4)(a) obligations:

Huge thanks to:

• @dimi_z for Bulgarian
• @matejmyska for Czech
• @olausib for Danish
• @TreatyNotifier and @Vrijschrift for Dutch
• @NorrgardMarcus for Finnish
• @questforbooty for German
• @LochVegas for Greek
• Peter Munkacsi for Hungarian
• @Unabomberz for Latvian 
• Justas Česnavičius for Lithuanian
• @LukaszCzernicki for Polish
• @paulasimoes for Portuguese
• @IGrudco for Romanian
• @jrjvv for Slovak
• @vicentinvs and @begokuia for Spanish
• @theflyinglawyer for Swedish

... but not his 'greatest efforts'!

Conclusion

The differences highlighted above will likely result in challenges at different levels, including at the national transposition phase of the Directive, compliance, judicial interpretation and application of resulting national provisions.

All this appears complicated further by the fact that the DSM Directive does not define the concept of 'best efforts'.

As all the different language versions above show, grasping the essence of 'best efforts' proves challenging already from a linguistic standpoint.

Stay tuned for more episodes of The IPKat DSM Directive Series!

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The IPKat's DSM Directive Series

• DSM Directive Series #1: Do Member States have to transpose the value gap provision and does the YouTube referral matter?
• DSM Directive Series #2: Is the press publishers' right waivable?
• DSM Directive Series #3: How far does Article 14 go?
• DSM Directive Series #4: Article 17 obligations ... in a chart