Top EU Court's Adviser Regrettably Fails To Recommend Throwing Out Upload Filters, But Does Say They Should Block Only "Identical" Or "Equivalent" Copies
from the out-of-their-tiny-minds dept
One of the last hopes of getting the EU’s terrible upload filters thrown out was an intriguing legal challenge brought by Poland at the region’s highest court, the Court of Justice of the European Union (CJEU). As is usual in these cases, a preliminary opinion is offered by one of the CJEU’s special advisers. It’s not binding on the main court, but can offer interesting hints of what the final judgment might be. Unfortunately, in his analysis Advocate General Saugmandsgaard Øe recommends that the CJEU should dismiss the action brought by Poland (pdf), because in his view Article 17 of the EU Copyright Directive is compatible with freedom of expression and information.
That’s a huge disappointment, since many hoped he would unequivocally rule that upload filters breach fundamental rights. However, the Advocate General’s opinion is by no means a complete disaster for users of online sharing services. He recognizes the right of people to make “legitimate use of protected subject matter.” Specifically, that means people must be able to rely on the EU’s exceptions and limitations to copyright. Moreover:
In order for that right to be effective, providers of such [online sharing] services are not allowed to preventively block all content reproducing the protected subject matter identified by the rightholders, including lawful content. It would not be sufficient for users to have the possibility, under a complaints and redress mechanism, to have their legitimate content re-uploaded after such preventive blocking.
This is a huge point. It means that copyright companies cannot demand that upload filters block every use of their material, since that would prevent legal transformative uses such as memes, parodies, commentary etc. Saugmandsgaard Øe concludes with the following observation to the CJEU:
Consequently, sharing service providers must only detect and block content that is ‘identical’ or ‘equivalent’ to the protected subject matter identified by the rightholders, that is to say content the unlawfulness of which may be regarded as manifest in the light of the information provided by the rightholders. By contrast, in all ambiguous situations — short extracts from works included in longer content, ‘transformative’ works, etc. — in which, in particular, the application of exceptions and limitations to copyright is reasonably foreseeable, the content concerned should not be the subject of a preventive blocking measure. The risk of ‘over-blocking’ is thus minimised. Rightholders will have to request the removal or blocking of the content in question by means of substantiated notifications, or even refer the matter to a court for a ruling on the lawfulness of the content and, in the event that it is unlawful, order its removal and blocking.
Crucially, this says that unless it is absolutely clear-cut that there is copyright infringement — because an identical, or equivalent copy is uploaded — user uploads must not be blocked by default. Instead, a more detailed complaint must be made by copyright holders, possibly involving a request for courts to rule on the legality of a transformative use. That’s very far from what those pushing for upload filters want, and represents a major limitation on the latter.
It’s an obvious compromise position, and as such could well be adopted by the CJEU when it hands down its definitive judgment at a later date. Saugmandsgaard Øe says that yes, upload filters are acceptable in the EU, but can only be used to block identical, or near-identical copies. In his full opinion, he also affirms strongly and repeatedly that other legal uses of copyright material must not be blocked by upload filters. And there’s a nice sting in the tail of his analysis. In a Postscript, the Advocate General comments on the European Commission’s recent “guidance” to national governments on how they should implement Article 17. As Techdirt noted last month, this guidance introduced a huge loophole that would let copyright companies “earmark” any upload that they claim “could cause significant economic harm”, even if likely to be a legitimate use of protected subject matter. Earmarked uploads would lack key legal protections, and Saugmandsgaard Øe is having none of it:
If this is to be understood as meaning that those same providers should block content ex ante [in advance] simply on the basis of an assertion of a risk of significant economic harm by rightholders — since the guidance does not contain any other criterion objectively limiting the ‘earmarking’ mechanism to specific cases — even if that content is not manifestly infringing, I cannot agree with this, unless I alter all the considerations set out in this Opinion.
This is basically Advocate General-speak for “you must be out of your tiny minds”.