Earlier this year, Poland initiated a legal challenge against Article 17 of the Directive on copyright in the Digital Single Market before the Court of Justice of the European Union (CJEU) [C-401/19]. The CJEU has finally published the application for this legal challenge. Our member, Centrum Cyfrowe Foundation, has tried to get access to the complaint before using Freedom of Information requests, without success…
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.
The Republic of Poland seeks the annulment of Article 17(4)(b) and Article 17(4)(c), in fine of the Directive on copyright in the Digital Single Market. In the alternative, should the Court find that the contested provisions cannot be deleted from Article 17 of Directive without substantively changing the rules contained in the remaining provisions of that article, the Republic of Poland claims that the Court should annul Article 17 of Directive in its entirety.
The Republic of Poland raises against that the contested provisions of the Directive a plea alleging infringement of the right to freedom of expression and information guaranteed by Article 11 of the Charter of Fundamental Rights of the European Union. It claims specifically that the imposition on online content-sharing service providers of the obligation to make best efforts to ensure the unavailability of specific works and other subject matter for which the rightholders have provided the service providers with the relevant and necessary information and the imposition on online content-sharing service providers of the obligation to make best efforts to prevent the future uploads of protected works or other subject-matter for which the rightsholders have lodged a sufficiently substantiated notice make it necessary for the service providers — in order to avoid liability — to carry out prior automatic verification (filtering) of content uploaded online by users, and therefore make it necessary to introduce preventive control mechanisms. Such mechanisms undermine the essence of the right to freedom of expression and information and do not comply with the requirement that limitations imposed on that right be proportional and necessary.
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.