[Guest post] The translations of Article 17 DCDSM: when words can damage or heal

Last year, as part of a DSM Directive series [here, here, here, here, here, here], The IPKat unveiled an issue with seemingly inconsistent translations of the directive into the EU official languages, notably the phrase 'best efforts' in Article 17 therein. Now, Aline Larroyed has looked into this issue in greater detail and produced a study, the content of which she's summarizing for our readers.

Here's what Aline writes:

The translations of Article 17 DCDSM: when words can damage or heal 

by Aline Larroyed

My study on the translations of Article 17 under Directive (EU) 2019/790 on copyright and related rights in the Digital Single Market (DCDSM), supported by C4C, explores how the ‘best efforts’ translations in the EU Official Journal may affect Member States’ transposition and impact users of online content-sharing service providers (OCSSPs). Spoiler alert: only 10 out of the 24 official EU language translations ensure a correct Article 17 transposition.

The analysis combines translation quality assessment (TQA) techniques with interviews of legal experts in key Member States. The focus was on (1) the translations’ accuracy according to the intended meaning of ‘best efforts’ in its original context and (2) the possible approaches to ensure more accurate and harmonized transpositions.

More than words

Inaccurate translations can skew Article 17’s transpositions, generating harmful effects in turn in terms of legal certainty and harmonization. Incorrect translations can result in diverging implementation approaches that negatively impact users, platforms, and creators, and risk fragmenting the Digital Single Market. All in all, this might restrict freedom of speech and curtail communication, creation, and innovation in Europe. Words matter, as well as the significance they bring with them. Therefore, there was an urgent need to examine these translations and their potential impact in accordance with the intended meaning of the Article 17 ‘best efforts’ concept.

‘Words, words, mere words, no matter from the heart...'

The EU Official Journal ‘best efforts’ translations are problematic: 15 out of the 24 EU languages presented inaccuracies and/or inconsistencies. Most of them extrapolated thee scope of ‘best efforts’ to ‘all efforts’, ‘maximum efforts’, or ‘all possible efforts’. There were even discrepancies in languages with similar legal cultures, such as Czech and Slovak.

The good, the bad, the ugly: some noteworthy illustrations

The bad – Portugal & Bulgaria: Their translations do not follow the original text’s consistent approach of using ‘best efforts’ throughout Article 17(4). Instead, they mix various terminologies (PT: ‘all efforts’ combined with ‘best efforts’; BG: ‘made all possible efforts’ mixed with ‘made maximum efforts’). This shows that the consistency of the chosen terminology is also at stake.

The ugly – Germany: They initially kept the incorrect translation in the EU Official Journal into their draft legislation but acknowledged this flaw publicly. The explanatory remarks set to accompany the legislation specified that the use of ‘all’ in the German version does not provide for a higher standard than ‘best efforts’. However, keeping the expression ‘alle Anstrengungen’ in the national legislation would still have led to an inaccurate implementation or incorrect interpretations by stakeholders. Aware of this shortcoming, the German proposal switched very recently to ‘bestmögliche Anstrengungen’, an expression much closer to the original ‘best efforts’ standard. Yet again a proof of concept that national legislators have the ability to remedy inaccurate EU Official Journal translations.

The good – the Netherlands: They opted to rectify the inaccurate translation in the EU Official Journal during their implementation processes. The text adopted by the Second Chamber switched from ‘have done everything possible’ (‘alles in het werk hebben gesteld’) to ‘best ability’ (‘beste vermogen’), a standard closer to ‘best efforts’ its legal concept, as used in the DCDSM.

Summary Table: Translation Quality Assessment (TQA) Results

Source: based on the official translations of DCDSM and on Rosati, 2019

‘Legalese’ is a language in itself: the importance of the original meaning and of intended outcome

‘Best efforts’ is legal terminology and should be translated as such. The intended meaning of ‘best efforts’ is lost if the expression is interpreted as everyday language. Intuitive approaches are not adequate justifications. Verbal precision is relevant to legislative texts. The translations should provide clear, unambiguous language, as they will have substantial implications on Article 17’s transposition and application. The overall context of the original version of the DCDSM is of great importance to ensure that it remains aligned with Article 17’s original intent. In this, it is important to consider that:

• ‘Best efforts’ is originally a common law concept more often associated with the achievement of an obligation of means;
• Article 17 clearly refers to the concepts of ‘proportionality’ (§5) and ‘cooperation’ (§§7-8 & §10) to set the boundaries for the interpretative framework defining the scope and breadth of ‘best efforts’ [see figure below]; 
• The Polish government’s legal challenge before the Court of Justice of the European Union (CJEU) seeking the annulment of Article 17(4)(b) and(4)(c) of the DCDSM (C-401/19) sheds light on Article 17(4)’s interpretation. At the 10 November 2020 CJEU hearing, the European Commission’s legal services, whose view was supported by that of the Council, explained on the record that Article 17(7) (safeguarding exceptions and limitations) corresponds to an ‘obligation of result’, prevailing over Article 17(4)’s ‘obligation of best efforts’. Therefore, OCSSPs’ measures must not result in the prevention of the availability of works that do not infringe copyright, i.e. users’ legitimate uploads should never be blocked under the ‘best efforts’ obligation

‘Best efforts’ interpretative framework - Key parameters - source

The healing power of words: putting ‘best efforts’ into context

There are three possible approaches for accurately translating ‘best efforts’:

1. a literal translation;
2. translating it as ‘reasonable efforts’; or, 
3. (in cases of lexical gaps in the target language) employing another construct with the closest possible equivalent meaning.

The delicate balance of fundamental rights and the very specific context defining the expression have to be clearly translated in national legislation. Therefore, ‘for clarity’s sake and to avoid any doubt stemming from inaccurate EU Official Journal translations and future impediments to the Digital Single Market, the way forward would be for the European Commission to issue the necessary corrigenda of the incorrect language versions. However, this should not stop Member States from implementing ‘best efforts’ correctly, as the translation errors are manifest’, as concluded in the paper.

Funding for this project was secured from C4C. However, the author has carried out the study in complete academic independence.