Commission unveils Article 17 Guidance: 3 highlights

Today, after several months of waiting and with the deadline for the national transposition of the DSM Directive being just a weekend away (it will be on Monday, 7 June), the European Commission has issued its Guidance on the application of Article 17. 

Here are 3 key highlights:

Article 17 not a sui generis right of communication to the public

An actual sui generis Kat

First, the Guidance takes a different view from the one provisionally expressed in September 2020.

It states that Article 17 is lex specialis to the InfoSoc Directive, but also that the provision does not create a special/sui generis right of communication to the public compared to the one already contained in Article 3 of the latter:

Article 17 does not affect the concept of communication to the public or of making content available to the public elsewhere under Union law, nor does it affect the possible application of Article 3(1) and (2) of Directive 2001/29/EC to other service providers using copyright-protected content.

As readers know, the nature of the Article 17 right of communication to the public has been a long-discussed issue, and has also featured prominently in some national transposition debates, notably the German one.

I have already expressed my view that characterizing Article 17 as a special/sui generis right of communication to the public is incorrect: see here and here.

In any event, we may expect to hear more about this issue when, in a few weeks (on 22 June), the Court of Justice of the European Union (CJEU) issues its judgment in YouTube, C-682/18 and Cyando, C-683/18. In his Opinion last year [Katpost here], Advocate General Øe opined that platforms like YouTube and Uploaded could be liable under Article 17 lacking a licence, but the same would not be true under the InfoSoc Directive alone.

The structure of Article 17 is inflexible!

Flexible Kat

The second major point is in line with CJEU copyright case law over the past several years: unless a directive leaves it to Member States to fine-tune the content of a provision, Member States are not allowed to alter the scope thereof.

The same goes for Article 17 too.

The Commission Guidance confirms that Member States: 

1. cannot alter the notion of ‘online content sharing service provider’ (OCSSP), 
2. the concept of ‘best efforts’ is an autonomous concept of EU law, which must be applied uniformly across the EU, and 
3. Member States cannot set quantitative thresholds in connection with ‘large amount’ in the definition of OCSSP.

The latter is a key point: in practice, it means that Member States cannot introduce de minimis statutory exemptions to the application of Article 17. It is for national courts, not legislatures, to determine whether the amount of content in question is to be regarded as ‘large’ or not, based on all circumstances at issue.

Again, this is something that featured in the German Article 17 transposition debate, but is also relevant to the transposition of other provisions in the DSM Directive. 

For instance, Italy is preparing to transpose Article 15 (the press publishers’ right): the relevant delegation law mandates to define the notion of ‘very short extracts’ (Article 9(1)(i)). In light of the (correct) interpretation provided by the Commission, such an approach would be both inappropriate and contrary to EU law.

Ex ante/ex post blocking

Turning to user uploads, Article 17(7) does not expressly state that ‘legitimate uses’ – by that meaning uses that qualify for the application of an exception or limitation, but also uses that are not infringing because, e.g., undertaken in relation to public domain materials – should be allowed ex ante, rather than just ex post by relying on the redress and complaint mechanism.

While the draft Guidelines spoke of only 'likely infringing uploads' to be blocked ex ante, the Commission Guidance recommends limiting automated ex ante blocking of content identified by rightholders to ‘manifestly infringing uploads’, by that meaning - for instance - exact or merely technically altered matches of entire works or significant proportions thereof.

Vice versa, uploads which are not manifestly infringing should in principle be allowed and may be subject to an ex post human review when rightholders oppose by sending a notice. Such uploads may include short extracts of a longer work or transformative uses of a work or part thereof.

What is the legal value of the Commission Guidance?

In all this, one may wonder what the legal status of today's Communication is. Well, the Guidance is not binding on the CJEU since it is non-binding or ‘soft law’. The Court has the authority - in accordance with Article 267 TFEU - to give prelim­inary rulings concerning the validity and interpretation of acts of the institutions, bodies, offices, or agencies of the European Union. 

Insofar as national authorities and courts are concerned, however, these shall take the Commission’s guidance into consideration in order to decide disputes submitted to them, because of the indirect effect that non-binding law has. This said, in accordance with settled case law, the Commission’s Article 17 Guidelines cannot be regarded as conferring rights on individuals, which the latter may rely upon before such courts and authorities. As a result, the Guidance shall not be enforceable per se before national courts and authorities, though it may form the object of a request for a preliminary ruling

Although Article 17(10) does not specify whether the Commission’s guidance on the application of Article 17 should be updated or only issued una tantum, the former ap­pears preferable as an interpretation, also considering the rationale of the stakeholder dialogue, the continuously changing state of the art, and the review obligation on the Commission, The Commission Guidance itself acknowledges it, albeit in specific connection with the outcome of the pending CJEU decision in the Polish challenge to Article 17. AG Øe’s Opinion in this case is due on 15 July. So ... stay tuned!