Polish Government's Legal Challenge To EU Copyright Directive's Article 13/17 Remains Shrouded In Mystery, But Details May Not Matter

from the never-say-never dept

The awful Article 13/17 of the EU’s Copyright Directive only seems to have passed thanks to some MEPs voting for it by mistake. But the European Parliament was not the only arm of the European Union where there was strong resistance to the awful ideas contained in the upload filter proposal. Some individual governments were also against aspects of the law. For example, right at the end of the legislative process, in April 2019, no less than seven EU nations expressed their serious concerns. One of them was Poland, which issued a joint statement (pdf) with the Netherlands, Luxembourg, Italy and Finland, including the following:

We believe that the Directive in its current form is a step back for the Digital Single Market rather than a step forward.

Most notably we regret that the Directive does not strike the right balance between the protection of right holders and the interests of EU citizens and companies. It therefore risks to hinder innovation rather than promote it and to have a negative impact the competitiveness of the European Digital Single Market.

Furthermore, we feel that the Directive lacks legal clarity, will lead to legal uncertainty for many stakeholders concerned and may encroach upon EU citizens’ rights.

We therefore cannot express our consent with the proposed text of the Directive.

Unfortunately, in the final vote, these countries were outvoted by the other EU Member States, and the Directive was passed. However, it seems that is not the end of the story. On May 23, the official Twitter account of the Chancellery of the Prime Minister of Poland tweeted as follows, re-stating the points made in the joint statement:

Tomorrow #Poland brings action against copyright directive to CJEU. Here’s why. #Article13 #Article17 #ACTA2

Why is Poland concerned about the Copyright Directive?

The directive does not ensure a balance between the protection of right holders and the interests of EU citizens & EU enterprises.

The directive does not ensure legal clarity, fostering legal uncertainty for stakeholders and endangering the rights of EU citizens.

It could have a negative impact on the competitiveness of the European digital single market.

There is a risk that it will hinder innovations instead of promoting them.

Those criticisms are made even more pointed by the reference to ACTA — the Anti-Counterfeiting Trade Agreement that Polish citizens played an important part in helping to defeat in 2012. Using the hashtag #ACTA2 is a clear attempt to frame the Copyright Directive as more of the same bad stuff — with the hope that it will suffer the same fate.

And yet despite that tantalizing tweet, the Polish government failed to provide any more details about what exactly its legal challenge against the Copyright Directive at the EU’s top court, the Court of Justice of the European Union, (CJEU), involved. We do know that the complaint has been submitted, because the action has been assigned an official case number, C-401/19, but with all the fields containing placeholders at the time of writing.

Tomasz Targosz, from the Institute of Intellectual Property Law, Jagiellonian University Kraków, has written an interesting post on the Kluwer Copyright Blog about the Polish move. In it, he provides invaluable information about the political context for this unexpected development. He points out that the failure to publish the official complaint may indicate that the argument it employs is weak, and unlikely to stand up to expert scrutiny. But Targosz goes on to make the following important point:

No matter how the complaint is argued in terms of the legal quality of reasoning, it may be effective as long as there are no obvious formal errors. The issue at stake will garner so much attention that the arguments the Court will have to consider will go way beyond the initial complaint. We can expect numerous and voluminous publications, position papers, etc., spelling out all the legally relevant factors (especially as so much has been already said). The complaint can therefore be compared to lighting the fuse. Whether any explosion will result from it is not certain, but sometimes even a tiny spark suffices.

That is, it seems likely that now that the formal complaint process has begun, the CJEU will be duty-bound to consider in depth all the issues raised. This will therefore provide a fresh opportunity for people to make the familiar arguments about why the Copyright Directive is so flawed, especially its implicit requirement for upload filters. Moreover, this time it is not fickle and highly partial politicians that will be deciding, but the staid and rather more independent senior judges of the CJEU. As we’ve seen in the past, they have no hesitation is overturning at a stroke pivotal EU laws that have taken years to draft and pass. Although it’s impossible to predict what the CJEU will rule on this matter, it certainly seems that there is still hope that some or all of the Copyright Directive could still be thrown out. For those who feared it was all over, never say never.

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Comments on “Polish Government's Legal Challenge To EU Copyright Directive's Article 13/17 Remains Shrouded In Mystery, But Details May Not Matter”

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37 Comments
Jack Forbodians Troutbridge says:

Re: What A Shame... That Poland takes the side of PIRATES.

It’s likely that on balance, Poland gets more content from Hollywood / rest of Europe than the reverse. Therefore easy call for politicians to make.

Rest of Europe chooses to defend CREATORS.

By the way, how’s that Brexit working out for ya, since I’m sure you’re a "Remainer", YET you’re right here complaining when Brussels rules you? See why everyone reasonable avoids such alliances in first place?

Wendy Cockcroft (profile) says:

Re: Re: What A Shame... That Poland takes the side of PIRATES.

Article 13 does nothing to defend creators. Nothing. Please feel free to explain exactly what it does in detail if you believe otherwise. I create cartoons and blog posts, etc. No protection under Article 13 for me!

Brexit is stalled while the EU waits for Britain to get its act together. While it’s being ruled by a clown car pile-up, AKA the Tory party, they’ll be kept waiting. Tories don’t like reality much.

Hugo S Cunningham (profile) says:

Require *governments* to maintain *free* safe-harbor filters.

The damage of EU CD Article 13/17 could be mitigated if EU governments were required to maintain free safe-harbor copyright filters. The costs of such filters could be collected from copyright holders who wished to include their works on them. The government involvement would guarantee speedy and effective legal redress against erroneous screening, eg of "fair use."

PaulT (profile) says:

Re: Re: Require *governments* to maintain *free* safe-harbor fil

I’d assume the idea is that because copyright is a government construct that they should be in charge of maintaining a central database rather than everybody having to essentially guess.

But, it’s an idea that’s doomed so long as automatic granting of copyright is a thing, as no government would be any better placed than Google et al.

PaulT (profile) says:

Re: Require *governments* to maintain *free* safe-harbor filters

"The costs of such filters could be collected from copyright holders who wished to include their works on them"

So.. are you advocating for independent creators to be priced out of copyright protection, the removal of automatic copyright and protection for user-generated content, or both?

Hugo S Cunningham (profile) says:

Re: Re: Require *governments* to maintain *free* safe-harbor fil

I would leave independent copyright holders their current means of enforcing copyright, even if they decided participating in the government filter cost more than they wished to pay. But would participation be expensive if spread out among the millions of works eligible for inclusion? (If so, then advocates of EU CD Article 13/17 would have an incentive to abandon a bad idea.)

PaulT (profile) says:

Re: Re: Re: Require *governments* to maintain *free* safe-harbor

"I would leave independent copyright holders their current means of enforcing copyright"

So, why change that and further confuse everything?

"But would participation be expensive if spread out among the millions of works eligible for inclusion?"

Millions? You seem to be missing a few zeroes there, especially if you’re not going to stop UGC at the same time.

PaulT (profile) says:

Re: Re: Re: Require *governments* to maintain *free* safe-harbor

The problem is now that things have gone from gatekeepers to ordinary people publishing their own content, what are the terms of not having that, which now require a gatekeeper to be paid to have copyright? It won’t fix anything if ordinary people can no longer publish because a corporation will legally steal their output.

TFG says:

Re: Re: Re:2 Require *governments* to maintain *free* safe-ha

A couple of ideas, which I present for analysis and teardown. Less presented in terms of feasibility of getting them past the people who don’t want them, and more in terms of feasibility as a system overall (aka I know the lobbyists would kill them, let’s not get bogged down in that).

A) Copyright terms return to the highly limited status of a certain amount of years (28 is a length I remember being used before) after publishing. There is no renewal clause. Lifetime of the creator has no bearing. If the creator dies before the term, next of kin or a designated heir inherit the rights for the remainder of the term. If there is no heir, it immediately enters public domain.

B) Organizations can only own a copyright if the copyrighted item was created under a Work-for-Hire contract. The actual author, artist, etc. must have agreed to this beforehand, in writing. All Work-for-Hire copyrighted items must be registered, and are subject to the exact same term limits as all other copyrights.

C) With the exception of Work-for-Hire copyrighted items, and the previously listed inheritance exception, copyright is competely non-transferrable. You cannot purchase or otherwise require transfer of copyright from one individual to another under any circumstances.

Work-for-Hire copyrights may be transferred, with appropriate documentation. The transfer must be registered. The transfer will not affect the term of the copyright.

D) Derivative works are treated as originals in their own right. No creation of a derivative work will affect the copyright on the original, either to invalidate it or extend it.

TFG says:

Re: Re: Re:4 Require *governments* to maintain *free*

C) definitely requires some protections. The basic idea I have behind it is of cases where someone is hired to create something or is full-time employed and creates the thing on the job for the company. Movies, computer games, mainstream comics, that sort of thing.

There’d likely need to be serious penalties attached to any attempt to fraudulent Work-for-Hire cases.

Mason Wheeler (profile) says:

Re: Re: Re:2 Require *governments* to maintain *free* safe-ha

The problem is now that things have gone from gatekeepers to ordinary people publishing their own content, what are the terms of not having that, which now require a gatekeeper to be paid to have copyright? It won’t fix anything if ordinary people can no longer publish because a corporation will legally steal their output.

First off, your use of the word "steal" does you no credit. But let’s look past that.

What is this "require[ment of] a gatekeeper to be paid to have copyright" that you mention? Are you referring to the copyright office of the government? Because 1) that’s not what the term "gatekeeper" means in this context, and 2) copyright registration isn’t particularly expensive–and if its scale is expanded, it’s likely to create economies of scale that would drive the cost down further.

Also, you seem to be missing a few steps in your chain of logic here. How do we get from "copyright registration is required" to "ordinary people can no longer publish because a corporation will legally steal [sic] their output"? There’s no causal link that I can see between the two ideas…

PaulT (profile) says:

Re: Re: Re:3 Require *governments* to maintain *free* saf

"First off, your use of the word "steal" does you no credit."

I mean it literally – as in the corporation takes the work itself (for example, they take a draft screenplay and film it without paying or crediting the original author). Which did quite often happen before copyright. Say what you want about what copyright has become now, something was necessary.

"What is this "require[ment of] a gatekeeper to be paid to have copyright" that you mention? "

That’s what Hugo, the guy I was originally replying to, was suggesting.

Anonymous Coward says:

Re: Require *governments* to maintain *free* safe-harbor filters

"safe-harbor copyright filters"

This phrase seems to be self contradictory.

Why should a cost of doing business (protecting ones copyright) be foisted upon the public? Sounds a bit like that socialism stuff that some people say they do not like.

PaulT (profile) says:

Re: Re: Re: Require *governments* to maintain *free* safe-harbor

"My proposal is that the copyright-holders (not the taxpayers) pay to maintain the filter."

Then for taxpayers will pay the copyright holders, probably for a large markup, because they’ve ensured there’s no real competition in the mainstream marketplace. Bonus: now you have a minimum ransom required for anybody to be protected by copyright in the first place, so corporations will become even more powerful than independent artists..

Optical Point (profile) says:

Meanwhile... In Italy

https://www.digitalmusicnews.com/2019/05/21/italian-copyright-directive-ban/

Italy’s version of this punchbag-of-a-Directive has gotten worse thanks to a mistranslation, which will result in all content on the internet to be wiped out, whether it’s legal or not. Needless to say, unless Italy fixes this, there won’t be anything to do on the Internet.
Not even Chrome’s secret Dino game will relieve their potential boredom.

Jack Forbodians Troutbridge says:

Re: Meanwhile... In Italy -- "Optical Point" already to bombast

that looks like Timothy Geigner aka "Dark Helmet", and highly supportive of the site, just adding happy comments.

ODD when user name is "christiansearight99". Because even the most cursory reading of comments here does NOT give the impression this is a "Christian friendly" site.

IF you’re real, just READ the comments, "Optical Point" and you’ll see my advice is sound.

Optical Point (profile) says:

Re: Re: Re: and yet Meanwhile...Wait... Cabbage?

Which advice, the part about Cabbage Law or the Global Conspiracy to dilute your racial purity
Why are we bringing Cabbages into this conversation?

The past two replies completely ignore the topic that I introduced about a devastating mistranslation within the Italian version of the Copyright Directive and now we’ve gone from that to “racial profiling trolls who have nothing better to do with their lives” and Cabbages?

If your trying to make a salad, throw in some vegetables that are not recalled by the Food and Drug Association and perhaps some breadsticks at the side.

Anonymous Coward says:

Re: Re: Re:2 and yet Meanwhile...Wait... Cabbage?

The "cabbage law" line was a reference to ootb (the troll that replied to your post, IOW) repeatedly misusing the term "common law". (The troll is also known for being a flaming racist and/or anti-Semite on multiple occasions.)

Welcome to TD (and have an Insightful vote for the OP).

(And yes, the situation you reference in your link is facepalmingly awful, although not terribly surprising for Italy — their government goes in all sorts of wayward directions.)

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