Back in January of this year, we noted how both the Netherlands and France (at that point the only Member States that had presented proposals to implement Article 17) had proposed selective implementations of Article 17 that ignored crucial user rights safeguards. A lot has happened since January, but yesterday both Member States took further steps in their national implementations. And this time the two Member States are moving in opposite directions:
While the Dutch government has reacted to criticism from civil society and members of Parliament by fixing some of the most obvious shortcomings of its implementation law, the 2nd chamber of the French Parliament has adopted a law that gives the French government the power to implement Article 17 (and the rest of the provisions of the DSM directive) however it sees fit.
Netherlands: a course correction
Back in July of 2019, the Netherlands were the first country to propose an implementation law of the DSM directive. Somewhat surprisingly (the Netherlands had been one of the most vocal opponents of Article 17 in the Council) the proposed implementation law did not make any efforts to protect user rights and omitted most of the user rights safeguards contained in the final version of Article 17. After the proposal was sent to Parliament in June this year, together with Bits of Freedom and others we pointed out these shortcomings to the members of the legal affairs committee. Yesterday, in response to questions from members of the legal affairs committee, the government conceded that its original implementation proposal was incomplete and added the missing user rights safeguards to the proposal for an implementation law.
The updated implementation law proposal now includes all elements of Article 17 of the DSM directive. While it is disappointing to see that the Dutch government is sticking closely to the text of the directive (and not following Germany in exploring the flexibility offered by the directive), there is still room for improvement. The implementation proposal contains a clause that would allow the government to issue more detailed rules on the application of the article by means of an administrative order. In its response to the Parliament, the Dutch government has made it clear that it intends to use this clause to implement the Commission’s upcoming guidance on the implementation of Article 17, as long as such guidance will not further limit user’s rights. In this context the Dutch government has also made it clear that it supports core elements of the Commission’s proposed guidance. The Minister of Justice writes:
I follow the European Commission, which, on the basis of the stakeholder consultations carried out so far, is of the opinion that the application of automatic filters should be limited to those cases where there is a likelihood of infringing uploads (‘likely infringing’).
France: soldiering on
As we have reported earlier this week, the French government has made it clear that it is not interested in implementing any additional user rights safeguards. This is reflected in its approach to implementing Article 17 into national law. After having presented an initial proposal for an implementation law in December 2019 – one that also omitted most of the user rights safeguards contained in the final version of Article 17 – the French government changed its approach. In the face of possible delays because of the COVID-19 emergency, the French government added provisions to the law “DDADUE” that would authorise it to implement the provisions of the new copyright directive by decree (and without further parliamentary discussion). This so-called “DDADUE” law was approved by the Senate in July of this year and yesterday the Assemblee Nationale approved it as well. Once signed into law by the President, the government will have six months to implement the provisions of Article 17 into the French intellectual property law.
In theory, the French government could use this time to wait for the Commission’s guidance and to add the missing user rights safeguards, but given the French government’s strong alignment with the position of rightholders and commitment to a rapid implementation, it seems more likely that it will go ahead and implement the law as soon as possible, without any substantial changes from the version presented in December. Given that the resulting law will likely lack important user rights safeguards contained in Article 17, the legality of such a rushed implementation of Article 17 remains highly questionable.
And while France will likely be the Member State which can make the (dubious) claim to fame of being the first Member States to implement Article 17, the rest of the Member States would be much better advised not to look at France for guidance. The one thing that all of them should learn from these concurrent implementation efforts is that Parliamentary scrutiny contributes to better legislative outcomes. While the Dutch Parliament asserted its right in order to fix obvious flaws in the government’s proposal, the French Parliament has passed on this opportunity, severely undermining the legitimacy of the French implementation.