If the advocate general of the european court of justice has his way, poland’s lawsuit against the eu copyright directive’s controversial article 17 will fail. But the advocate general’s interpretation of the upload filter clause is so far removed from the views of the entertainment industry that it can hardly consider the opinion an unqualified success. If the court follows the interpretation of the advocate general, some platforms like youtube would even have to limit the voluntary use of upload filters so far.
Shortly after the reform was passed two years ago, the polish government filed a lawsuit claiming that the mandatory use of upload filters violated the essence of the right to freedom of expression. Last thursday, the advocate general published his closing arguments in the case, which are not legally binding but in many cases form the basis for the court’s ruling. This is expected in a few months.
Filters allowed under strict conditions
First of all, the advocate general clears up a number of allegations that have stirred up tempers during the copyright reform process. He quickly brushes aside the argument that article 17 does not lead to the mandatory use of upload filters because they are not in the text. He said he could "hard to imagine how platforms could comply with their obligations under article 17 other than using an" platforms to fulfill their obligations under article 17. This is what critics of the law have been saying for years. Nevertheless, during the european election campaign, the cdu promised to implement the law in german law without an upload filter. In the spring, it had to admit that it had not found a way to do so.
The advocate general concedes that article 17 represents a particularly serious interference with freedom of expression, because upload filters can have the effect of suppressing information even before it is published. The term "censorship", which the polish government used in its lawsuit, he considers it appropriate for such preventive content control, but avoids it in his own analysis, as censorship is also a "political or moral" control of content could imply. Preventive content control would only be compatible with fundamental rights under very high safeguards. Especially in the fast-moving internet, it is important to check content in advance "the danger that they were deprived of any actuality and the public was no longer interested in them".
Surprisingly, however, the advocate general concludes that article 17 can be saved by broadly interpreting the safeguards that the eu legislature introduced into the text towards the end of the negotiations in response to considerable prere from civil society. A central role is played by the provision according to which the filtering obligations of the platforms may not lead to legal content being blocked. This regulation, which the entertainment industry likes to minimize as a mere political goal, is taken seriously by the advocate general: "lawmakers considered ‘false positives’, which consist of blocking permissible content, to be more serious than ‘false negatives’", he concludes from this passage.
A pyrrhic victory for the entertainment industry
Whenever there are doubts about the illegality of a content, upload filters must not be used. According to the advocate general, these must be limited to obvious cases, such as uploads of entire movies. In the case of transformative uses, where excerpts from protected works are used in a new context, the advocate general therefore considers the use of upload filters to be an infringement of article 17. Platforms are not allowed to rule on doubtful cases at all, as they lack the necessary expertise and independence to interpret copyright law.
This means that even within the framework of the notice and takedown procedure, which has already been practiced for a long time, the platforms are only obliged to block content immediately if the infringement is obvious without closer legal examination. In all other cases, the rights holders must go to court. Today’s practice, whereby numerous internet services automatically respond to takedown notices and thus regularly block legal content, is far from this ideal.
Platforms are also not allowed to block such content voluntarily at the request of rights holders with reference to copyright, but they must guarantee the use of quotation rights, parody freedom and other copyright exceptions in their terms of business. This interpretation of article 17 is quite explosive, because many platforms that already use upload filters, such as youtube, block such legal uses as a matter of course and refer those affected to the possibility of lodging a complaint. According to the advocate general, this approach is unlawful.
The advocate general thus shows a way in which article 17 could survive the polish lawsuit, but whether the entertainment industry has done itself any favors by doing so remains to be seen. Numerous enforcement mechanisms that it had established with major platforms on a voluntary basis to the chagrin of users, such as contentid or the fully automated notice-and-takedown procedure, then had to be significantly curtailed.