Copyright not only regulates the interests of creators and intermediaries, but also applies to users’ rights. This was one of our main arguments in the discussion on Article 17 of the new copyright directive, which was often disregarded by our opponents. In our opinion Article 17 is not well-balanced and creates threats to freedom of expression. Such an assessment is shared by others: the UN Special Rapporteur on Freedom of Expression, non-governmental organizations dealing with digital rights, and a significant part of the academy. Now the very same objections will be evaluated by Court of Justice of the European Union.
Last week, the Government of the Republic of Poland filed a challenge to the new Directive on Copyright in the Digital Single Market, specifically Articles 17(4b) and 17(4c). The Minister of Culture and National Heritage explained:
“in our opinion this mechanism introduces solutions with preventive censorship features. Such censorship is forbidden by both the Polish Constitution and EU law – the Charter of Fundamental Rights guarantees freedom of expression.”
Interestingly, by filing the charge, the Polish government fulfilled a political promise made during the recent electoral campaign. At that time, Polish Prime Minister Mateusz Morawiecki tweeted that the new law is “a disproportionate measure that fuels censorship and threatens freedom of expression.”
According to Art. 263 of the Treaty on the Functioning of the EU, Member States may bring an action for revision of an EU law on the following grounds:
- lack of competence,
- infringement of an essential procedural requirement,
- infringement of the Treaties or of any rule of law relating to their application, or misuse of powers.
The text of the challenge has not yet been made public. We can only assume that the complaint by the Polish Government is based on the last circumstance.
In our opinion, referring the Directive to the Court of Justice is a good step that can help clear controversies concerning Article 17. An independent court will assess issues that in the policy debate are usually dismissed by representatives of rightsholders as fear mongering or disinformation.
Former MEP Catherine Stihler, a staunch opponent of many aspects of the reform, reacted positively to the news. “This is an extremely welcome move by Poland which could save the internet from this deeply unpopular copyright crackdown,” she said, in her new capacity as CEO of the NGO Open Knowledge Foundation. Various NGOs have been waiting for some time for the independent body to resolve the issue of compliance of Article 17 of the new directive with the Charter of Fundamental Rights.
Unfortunately, the political context of the challenge raises some questions. For months, the ruling PiS party has been brandishing its opposition to copyright as an election argument against the biggest opposition party, Civic Platform. It should be underlined that the complaint was submitted two days before the elections of the European Parliament. This fact been used as an argument in the political debate just before the election—putting an unnecessary political spin on an issue that should be non-partisan.
We hope that the text will be published immediately and will lead to a substantive debate about the compliance of the Directive with the Charter of Fundamental Rights. Our member, Centrum Cyfrowe Foundation, is currently trying to get access to the complaint using freedom of information requests, so far without success.