Brussels, 04/06/2021 – Three days ahead of the implementation deadline, the European Commission published its guidance on the application of Article 17 of the Directive on Copyright in the Digital Single Market (CDSMD) which necessitates the deployment of error-prone upload filters.  Contrary to its reassurance stated before the European Court of Justice last year , the Commission‘s guidance fails to effectively protect legal uses of copyrighted material by allowing rightholders to ‚earmark‘ content to be blocked automatically on the base of economic interest.
The long-awaited guidance on Article 17 of the Copyright Directive maintains that, in principle, automated blocking of content uploaded by users must be limited to cases that manifestly violate rightholders‘ copyright claims. However, the newly published guidance foresees the option for rightholders to identify specific content the unlawful sharing of which „could cause significant economic harm to them“. Online platforms would have to automatically block the publication of such content even if re-used for legal purposes such as for memes.
Marcel Kolaja, Czech Pirate Party MEP and Vice-President of the European Parliament, comments:
“What the Commission basically says is that all manifestly infringing content needs to be blocked. However, that means that all the content that is being uploaded needs to be monitored. And of course, that is not something that the platforms would be able to do manually. Therefore, service providers will be forced to use upload filters. However, these are error-prone and will not be able to correctly recognize exceptions, such as content that is a satire or a parody. Even with the Commission’s guidance, upload filters will not be able to correctly distinguish infringing content from manifestly infringing content. Freedom of expression will become unjustifiably restricted.
“Rightholders will become Internet censors. What if you upload a short video of yourself performing indoor rock-climbing and there is a background music in the gym? That would not normally qualify as a manifestly infringing content – except if the rightholder says that uploading this content can cause them significant economic harm,” Kolaja adds.
Patrick Breyer, Member of the European Parliament for the German Pirate Party comments:
„Once again, the EU Commission accepts the collateral suppression of legal content in the interest of industry profits. Civil society, which has taken to the streets in Europe in their thousands against this radical automated restriction of freedom of expression, is once again being thrown out on its ear. The manual review of unjustified filtering will usually take place too late to prevent damage to our freedom of expression, especially for comments on current affairs. It is no surprise that these guidelines are published on a Friday and only three days before the transposition deadline, with major Member States having transposed the Directive already, in order to give EU citizens and activists as little chance as possible to react to this fundamental rights breach.”
In 2019, the European Parliament adopted the highly contested Copyright Directive which effectively mandated error-prone uploadfilters to automatically block alledgedly copyright-infringing content on online platforms. The negotiations caused hundreds of thousands of European citizens to mobilise against the law in EU-wide demonstrations to protect the fundamental right to freedom of expression online. The directive is supposed to be implemented in all member states by 7 June 2021. The European Court of Justice is currently hearing a case against the contested Article 17 brought forward by the Polish government. A first Opinion by the Court‘s Attorny General is expected for this month.
 European Commission: Guidance on Article 17 of Directive 2019/790 on Copyright in the Digital Single Market: https://digital-strategy.ec.europa.eu/en/library/guidance-article-17-directive-2019790-copyright-digital-single-market
 CJEU hearing in the Polish challenge to Article 17: Not even the supporters of the provision agree on how it should work: http://copyrightblog.kluweriplaw.com/2020/11/11/cjeu-hearing-in-the-polish-challenge-to-article-17-not-even-the-supporters-of-the-provision-agree-on-how-it-should-work/
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