from the well-played,-Advocate-General dept
One of the most disgraceful aspects of the EU Copyright Directive saga was the shameless way its supporters swore that upload filters would not be required — despite the evident fact that there was no other way to implement the new law’s requirements. And indeed, once the legislation was passed, France lost no time in pushing for upload filters. Worse, its own implementation ignored what few protections there were for users’ fundamental rights. Fortunately, back in 2019, the Polish government made a formal request for the EU’s top court, the Court of Justice of the European Union (CJEU), to throw out upload filters. That is still grinding its way through the EU’s legal system, but its mere existence could play an important role as EU member states grapple with the impossible task of passing national laws to implement the EU Copyright Directive.
To help them do that, the European Commission said it would release guidance on how to reconcile the contradictory requirements of upload filters and user rights. As a post by Communia accompanying an open letter to the Commission (pdf) explains, the first draft made it clear that national implementations of Article 17 — upload filters — must contain built-in protection that limits the automated blocking of uploads to situations where material is “manifestly” infringing. Since that promising start, there has been no sign of the final guidance. Instead, as Communia notes, there has been lots of lobbying against user rights:
Over the past few months the final version of the guidance has been the object of intense, behind the scenes, political wrangling between different parts of the Commission. In February, MEPs critical of the principles expressed in the draft guidance held a closed door meeting with Commission representatives and select Member States opposing the Commission’s position. In the following week a high ranking member of the Cabinet of Executive Vice President Magrete Vestager — who oversees this file — received a delegation of rightholder organisations who have been rallying against the principles underpinning the Commission’s draft guidance to discuss the Copyright Directive.
It looks increasingly likely that the European Commission is planning to cave in to the usual copyright bullies. But it has a major problem in the form of the Polish action at the CJEU. If its guidance fails to defend fundamental user rights, and national implementations ignore them, it is more likely that the CJEU will strike down Article 17:
a weakened version of the guidance would also undermine the Commission’s credibility with the CJEU, who ultimately needs to decide on the fundamental rights compliance of Article 17. Having argued that the upcoming guidance would signal a strong commitment to protecting users’ fundamental rights, any weakening of this position by the Commission would give the Court additional reasons to annul Article 17 (as requested by the Republic of Poland).
It seems the European Commission has been unwilling to release its long-awaited and watered-down guidance because it wanted the CJEU’s adviser, the Advocate General, to publish his opinion before the bad news came. But the Advocate General has outplayed the European Commission. He has announced that he won’t be releasing his opinion until July, rather than this week, as originally planned. By then, the draft guidance will have been issued, because EU member states must implement the Copyright Directive soon. So either the European Commission defends user rights in its official implementation guidance, or else it risks having the Advocate General and CJEU throw out upload filters completely.
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