France once more fails to demonstrate support for its interpretation of Article 17

Paye qui Tombe
Ex-post redress is still not good enough
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Last week the French Ministry of Culture held a virtual event to present the second report on content recognition tools on digital sharing platforms commissioned by the Conseil Supérieur de la Propriété Littéraire et Artistique (High Council for literary and artistic property – CSPLA). The new CSPLA report, authored by Jean-Philippe Mochon (who had also authored the previous report on content recognition tools), focuses on “proposals for the implementation of Article 17 of the EU copyright directive”. The report consists of three parts: 

The first part contains a “review of existing best practices” of the use of content recognition tools. Here, the authors argue that such tools “must be given their rightful place in the implementation of Article 17 of the Directive”. The second part of the report focuses on the “balance between the fundamental rights set out in Article 17”. The third and concluding part of the report contains a number of recommendations for implementing Article 17 in France (and beyond). 

The central argument that is woven throughout the CSPLA report is that automated content recognition technologies already play an important role in managing copyright on digital sharing platforms, that Article 17 provides for sufficient fundamental rights protection through the complaint and redress mechanism alone, and that temporary restrictions on freedom of expression are considered acceptable to achieve the goal of stronger protection of intellectual property rights. A more detailed critique of some of the core arguments contained in the middle part can be found in this post on the Kluwer Copyright Blog

To mark the occasion of the publication of the CSPLA report, the French permanent representation in Brussels hosted a (virtual) event that was clearly intended to demonstrate additional support for the French position in the discussion about the implementation of Article 17. 

For the presentation of the report the organizers had invited the authors of the report and three external speakers, representing the European co-legislators: MEP Axel Voss (the European Parliament’s rapporteur for the DSM directive), Marco Giorello (the head of the Copyright Unit of the European Commission) and Ricardo Castanheira (representing the Portugese Council Presidency). If the organizers of the event had hoped that these speakers would express support for the French position in the Article 17 implementation discussion, then they must have been quite disappointed: None of the three respondents came forward with unqualified support for French interpretation of Article 17. As expected, Marco Giorello made it clear once more that the Commission does not agree with the French position that there is no need for ex-ante user rights safeguards in national implementations of Article 17:

I will not surprise anybody. I think if I say that there is our disagreement that we still have when it comes to the legal interpretation of the mechanism under Article 17(7). […] The interpretation of the report is that legitimate uses are essentially guaranteed ex post, through the redress mechanism.

Now, of course, the redress mechanism is very important, but what the Commission has consistently considered since the beginning of this discussion that an ex-post redress is not enough, and that the legitimate uses have to be considered also ex-ante. And this is pretty much what we have explained in the constitution paper of last summer, which has created a lot of debate. But it’s also the position that we have proposed to the Court of Justice.

While this clear reiteration of the Commission position was to be expected, the fact that MEP Voss backed up this reading was not. Voss couched his intervention in expressions of support for the French position in the debate (and against the German position), but his interpretation of the provisions at the core of the implementation dispute also contradicted the French argument that the ex-post complaint and redress mechanism was intended to serve as the only user rights safeguard. Instead he argued that paragraph 17(7) requires platforms ensure that uploads that contain third party works used under an exception or limitation (“legally changed”) will not be blocked: 

To avoid over blocking, […] we said, the platform has to upload legally changed, copyright protected works. […] now, I’m still interpreting this paragraph seven in a way that they have to upload, If this is legally changed copyright protected works. 

This is an accurate description of both the letter of Article 17(7) and its intended effect and directly contradicts the French reading of the provision in question. It speaks to Mr Voss’ integrity that he continues to defend the essence of legislative compromise that he brokered in order to get the DSM directive through the European Parliament. 

The fact that none of the external speakers was willing or able to back up the French interpretation of Article 17 (Mr Castanheira’s interventions were focused on the Digital Services Act and did not touch on the substantive questions addressed by the report) shows how far the French position is removed from the actual text of the Directive. Instead of demonstrating support for the French position, last week’s event further undermined the credibility of the French government’s attempts to present itself as the guardian of the original intent of the directive.

Still it is unlikely that the discussion about the “correct” interpretation of Article 17 will be settled anytime soon. During the event the Commission indicated that its long-awaited guidance will not be ready before mid-march of this year at the earliest. In the meantime the different camps are creating further facts on the ground. The French government announced that its implementation decree will be published within “a few weeks” and yesterday, the German government approved its implementation proposal (that introduces substantial ex-ante safeguards for users’ rights) which is now heading for discussion in the parliament . 

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