EU Copyright Directive: Further clarity on Art. 17 at EU level but also national concerns

Hogan Lovells

[co-author: Nils Peters]

While further clarity on the Copyright in the Digital Single Market Directive (“DSM Directive”) can be expected at the European level in the next two weeks with the guidelines of the EU Commission on Art. 17 of the DSM Directive and the opinion of Advocate General Saugmandsgaard Øe on the compatibility of Art.17 of the DSM Directive with EU law, the German draft of the implementation law continues to cause discussion. Rights holders have already indicated that they will file a constitutional complaint if the current draft is adopted.

Almost two years after the adoption of the DSM Directive, the most controversial article of the Directive, Article 17, continues to cause a stir - both at national and European level (see e.g. our latest posts here and here).

Guidelines by the EU Commission announced for 19 April

According to Art. 17 (10) of the DSM Directive, the European Commission must develop guidelines with the participation of all relevant stakeholders. In particular, "best practices" are to be developed there, with special consideration of the fundamental rights affected. After many years of difficult negotiations, the EU Commission has now announced that the guidelines should be presented on April 19 (see here). It is hoped that the guidelines will provide further clarity on the requirements of Art. 17 of the DSM Directive.

It should be noted, however, that the Guidelines are not binding for the courts, in particular the CJEU. Nevertheless, practice is likely to be guided by these guidelines in the future until the courts have defined the more detailed requirements with legal certainty.

Opinion by the General Advocate on the compatibility with European Law on 22 April

On 22 April, Advocate General Saugmandsgaard Øe will publish his opinion on Poland's action for annulment of Article 17 of the DSM Directive.

Poland considers the provision of Art. 17(4) of the DSM Directive as a violation of fundamental rights of the Union. In view of the expected mandatory use of filters, freedom of speech is no longer sufficiently guaranteed.

The oral hearing, which took place on 10 November 2020, made it clear that the Advocate General and the court take a critical view of Article 17 of the DSM Directive. Particular attention will probably be paid to the significance of the guaranteed user rights.

We will cover the Opinion of the Advocate General regarding the action for annulment shortly after its release.

German associations indicate constitutional complaint against German implementation of the Directive

Several associations in Germany have already indicated their intention to file a constitutional complaint against the planned copyright reform, and in particular the implementation of Art. 17 of the DSM Directive, if the reform is adopted as drafted at the moment.

These associations represent rights holders. On the one hand, they regard the de minimis limit of the German implementation law as incompatible with the principles of copyright law. Sec. 9 and 10 German draft of the Copyright Service Provider Act permit - rebuttably - the uploading of specified "minor" uses. The compatibility with European law is questioned by rights holders, as copyright law would not recognize a de minimis limit for the protection of copyrighted works. On the other hand, smaller associations feel that the implementation violates their rights to negotiate independently on the remuneration of their works. The new regulation would force artists to leave negotiations about remuneration to the CMOs. For the "minor" uses the German draft provides that the claim to appropriate remuneration can only be made by CMOs. In other respects, too, the CMOs are given a central role in the negotiations with platform providers.

The associations have already made their constitutional concerns clear on several occasions (see e.g. here or here, only available in German).

We will cover the German draft and the amendments made in the legislature process in a separate post.

Outlook

We are following these topics closely and will be monitoring and reporting on the upcoming process.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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