Opinion of Advocate General Saugmandsgaard Øe delivered on 15 July 2021.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2021:613
• Date: 15 July 2021
• Celex Number: 62019CC0401
• Court: Court of Justice (European Union)

Provisional text

OPINION OF ADVOCATE GENERAL

SAUGMANDSGAARD ØE

delivered on 15 July 2021 (1)

Case C‑401/19

Republic of Poland

v

European Parliament,

Council of the European Union

(Action for annulment – Directive (EU) 2019/790 – Copyright and related rights – Use of protected content by online content-sharing service providers – Communication to the public – Liability of those providers – Article 17 – Exemption from liability – Article 17(4)(b) and (c), in fine – Filtering of content uploaded by users – Freedom of expression and information – Charter of Fundamental Rights of the European Union – Article 11(1) – Compatibility – Safeguards governing such filtering)

I. Introduction

1. By the present action, brought on the basis of Article 263 TFEU, the Republic of Poland asks the Court, principally, to annul Article 17(4)(b) and (c), in fine, of Directive (EU) 2019/790 of the European Parliament and of the Council of 17 April 2019 on copyright and related rights in the Digital Single Market and amending Directives 96/9/EC and 2001/29/EC (2) and, in the alternative, to annul Article 17 in its entirety.

2. This action asks the Court to examine the question of the liability borne by providers of online sharing services when content that is protected by copyright or related rights is uploaded (3) by users of those services.

3. This issue has already been brought to the Court’s attention in Joined Cases C‑682/18, YouTube, and C‑683/18, Cyando, from the perspective of the framework provided by Directive 2000/31/EC on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (‘Directive on electronic commerce’) (4) and by Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society. (5) This case involves examining Article 17 of Directive 2019/790, which provides for a new liability regime applicable to online sharing service providers.

4. As I will explain in this Opinion, that provision imposes on those providers obligations to monitor the content posted by the users of their services in order to prevent the uploading of protected works and subject matter which the rightholders do not wish to make accessible on those services. Such preventive monitoring will, as a general rule, take the form of filtering that content using software tools.

5. That filtering raises complex questions, put forward by the applicant, with regard to the freedom of expression and information of users of sharing services, guaranteed in Article 11 of the Charter of Fundamental Rights of the European Union (‘the Charter’). Further to its judgments in Scarlet Extended, (6)SABAM (7) and Glawischnig-Piesczek, (8) the Court will have to determine whether, and as the case may be the circumstances in which, such filtering is compatible with that freedom. It will have to take account of the advantages, but also the risks of such filtering and, in that connection, ensure that a ‘fair balance’ is maintained between, on the one hand, the interest of rightholders in the effective protection of their intellectual property and, on the other, the interest of those users, and the general public, in the free flow of information online.

6. In this Opinion, I shall explain that, in my view, the EU legislature may, while observing freedom of expression, impose certain monitoring and filtering obligations on certain online intermediaries, provided, however, that those obligations are circumscribed by sufficient safeguards to minimise the impact of such filtering on that freedom. Since Article 17 of Directive 2019/790 contains, in my view, such safeguards, I shall propose that the Court should rule that that provision is valid and, consequently, that it should dismiss the action brought by the Republic of Poland. (9)

II. Legal framework

A. Directive 2000/31

7. Article 14 of Directive 2000/31, entitled ‘Hosting’, provides, in paragraph 1:

‘Where an information society service is provided that consists of the storage of information provided by a recipient of the service, Member States shall ensure that the service provider is not liable for the information stored at the request of a recipient of the service, on condition that:

(a) the provider does not have actual knowledge of illegal activity or information and, as regards claims for damages, is not aware of facts or circumstances from which the illegal activity or information is apparent; or

(b) the provider, upon obtaining such knowledge or awareness, acts expeditiously to remove or to disable access to the information.’

8. Article 15 of that directive, entitled ‘No general obligation to monitor’, provides, in paragraph 1:

‘Member States shall not impose a general obligation on providers, when providing the services covered by Articles 12, 13 and 14, to monitor the information which they transmit or store, nor a general obligation actively to seek facts or circumstances indicating illegal activity.’

B. Directive 2001/29

9. Article 3 of Directive 2001/29, entitled ‘Right of communication to the public of works and right of making available to the public other subject-matter’, provides, in paragraphs 1 and 2:

‘1. Member States shall provide authors with the exclusive right to authorise or prohibit any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access them from a place and at a time individually chosen by them.

2. Member States shall provide for the exclusive right to authorise or prohibit the making available to the public, by wire or wireless means, in such a way that members of the public may access them from a place and at a time individually chosen by them:

(a) for performers, of fixations of their performances;

(b) for phonogram producers, of their phonograms;

(c) for the producers of the first fixations of films, of the original and copies of their films;

(d) for broadcasting organisations, of fixations of their broadcasts, whether those broadcasts are transmitted by wire or over the air, including by cable or satellite.’

10. Article 5 of that directive, entitled ‘Exceptions and limitations’, provides, in paragraph 3:

‘Member States may provide for exceptions or limitations to the rights provided for in Articles 2 and 3 in the following cases:

…

(d) quotations for purposes such as criticism or review …;

…

(k) use for the purpose of caricature, parody or pastiche;

…’

C. Directive 2019/790

11. Article 17 of Directive 2019/790, entitled ‘Use of protected content by online content-sharing service providers’, provides:

‘1. Member States shall provide that an online content-sharing service provider performs an act of communication to the public or an act of making available to the public for the purposes of this Directive when it gives the public access to copyright-protected works or other protected subject matter uploaded by its users.

An online content-sharing service provider shall therefore obtain an authorisation from the rightholders referred to in Article 3(1) and (2) of [Directive 2001/29], for instance by concluding a licensing agreement, in order to communicate to the public or make available to the public works or other subject matter.

2. Member States shall provide that, where an online content-sharing service provider obtains an authorisation, for instance by concluding a licensing agreement, that authorisation shall also cover acts carried out by users of the services falling within the scope of Article 3 of [Directive 2001/29] when they are not acting on a commercial basis or where their activity does not generate significant revenues.

3. When an online content-sharing service provider performs an act of communication to the public or an act of making available to the public under the conditions laid down in this Directive, the limitation of liability established in Article 14(1) of [Directive 2000/31] shall not apply to the situations covered by this Article.

The first subparagraph of this paragraph shall not affect the possible application of Article 14(1) of [Directive 2000/31] to those service providers for purposes falling outside the scope of this Directive.

4. If no authorisation is granted, online content-sharing service providers shall be liable for unauthorised acts of communication to the public, including making available to the public, of copyright-protected works and other subject matter, unless the service providers demonstrate that they have:

(a) made best efforts to obtain an authorisation, and

(b) made, in accordance with high industry standards of professional diligence, 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 in any event

(c) acted expeditiously, upon receiving a sufficiently substantiated notice from the rightholders, to disable access to, or to remove from their websites, the notified works or other subject matter, and made best efforts to prevent their future uploads in accordance with point (b).

5. In determining whether the service provider has complied with its obligations under paragraph 4, and in light of the principle of proportionality, the following elements, among others, shall be taken into account:

(a) the type, the audience and the size of the service and the type of works or other subject matter uploaded by the users of the service; and

(b) the availability of suitable and effective means and their cost for service providers.

…

7. The cooperation between online content-sharing service providers and rightholders shall not result in the prevention of the availability of works or other subject matter uploaded by users, which do not infringe copyright and related rights, including where such works or other subject matter are covered...