Wednesday, 22 May 2019

DSM Directive Series #5: Does the DSM Directive mean the same thing in all language versions? The case of 'best efforts' in Article 17(4)(a)

Bruno made
his 'best efforts'
to stick to his diet ...
A couple of days ago, The IPKat posted about a (gross) Italian mistranslation of Article 17 of the DSM Directive 2019/790 (formerly known as Article 13), which seems to require online content sharing service providers (OCSSPs) to prevent the availability of all unlicensed subject matter, irrespective of whether it is infringing or not.

I have been informed that this error will be corrected soon, as it is clearly an incorrect translation of the adopted text.

As a follow-up to this, I took a closer look at the Italian translation of Article 17, and was a bit surprised when I saw that the phrase 'best efforts' in Article 17(4)(a) had not been translated as 'migliori sforzi' but rather as 'massimi sforzi'.

I shall try and clarify what I mean.

If we look at the English version of the DSM Directive, we see that a softer regime is in place for those OCSSPs who, together with satisfying other conditions [see here], have "made best efforts to obtain an authorisation" from relevant rightholders for the making available of protected subject matter. 

Similarly, the French version requires OCSSPs to have made "meilleurs efforts pour obtenir une autorisation".

However, the Italian version requires OCSSPs not just to have made their 'best' efforts, but actually their 'greatest' efforts. 

'Best' vs 'Greatest'

While in practice there might be little difference between 'best' and 'greatest', from a grammatical (and conceptual) standpoint they are not synonyms. 



'Best' is the superlative of 'good', 'greatest' is the superlative of 'great': the latter requires something more than the former. 

In addition, it can be considered that, while 'best' entails a qualitative assessment of one's own efforts ('they did their best'), 'greatest' mandates more of an objective assessment of one's own efforts ('they could not do more than what they did').

What about the other language versions?

So, 'I couldn't help but wonder' whether other language versions of Article 17(4)(a) mandated something other than the making of 'best efforts'/'meilleurs efforts'. 



Thanks to the collective efforts of several IP enthusiasts who happened to use Twitter yesterday, it appears that the answer is in the affirmative.

While some language versions correspond to the 'best efforts'/'meilleurs efforts' concept, others entail something else: so, for instance, the Spanish version requires the making of 'greater' efforts, while the Czech, Dutch, German, Latvian, Polish, Portuguese, and Romanian versions require that 'all efforts' be made to obtain a licence. Also the Swedish version requires 'all efforts' be made, but the way the obligation is phrased appears to entail a direct proportionality between the ability to make such efforts and the efforts actually made. The latter seems to be more a matter of (objective) ability rather than subjective approach.

The table below shows a few different language versions of Article 17(4)(a) obligations:


Huge thanks to:
... but not his 'greatest efforts'!
Conclusion

The differences highlighted above will likely result in challenges at different levels, including at the national transposition phase of the Directive, compliance, judicial interpretation and application of resulting national provisions.

All this appears complicated further by the fact that the DSM Directive does not define the concept of 'best efforts'.

As all the different language versions above show, grasping the essence of 'best efforts' proves challenging already from a linguistic standpoint.

Stay tuned for more episodes of The IPKat DSM Directive Series!

Tuesday, 21 May 2019

Error in the Italian translation of Article 17 of the DSM Directive ... but is Italian the only instance?


The various language versions of this new piece of EU legislation are available here.

The IPKat has learned from friends Valentina BorgeseCarmine Di BenedettoDaniele Cerulla and Daniele Fabris (all PhD students at the University of Pavia) that not all language versions of the directive say the same thing. 

In particular, they have spotted a notable omission in the Italian version of Article 17 of the Directive.

The English version of Article 17(7) states:
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 by an exception or limitation [...] [emphasis added]
Well, in the Italian version the 'not' bit is missing, as the proviso reads as follows:
La cooperazione tra i prestatori di servizi di condivisione di contenuti online e i titolari dei diritti deve impedire la disponibilità delle opere o di altri materiali caricati dagli utenti, che non violino il diritto d'autore o i diritti connessi, anche nei casi in cui tali opere o altri materiali siano oggetto di un'eccezione o limitazione.
Substantially, the Italian version mandates the prevention of the availability of lawful subject matter ... 😨

It is clearly an error, which hopefully will be remedied soon. 

But is Italian the only instance of errors in the translation of the DSM Directive? Let The IPKat know!

[Originally published on The IPKat on 19 May 2019]

DSM Directive is now Directive 2019/790 and Member States will need to transpose it by 7 June 2021

At last the Directive on copyright in the Digital Single Market [see IPKat DSM Directive Series hereherehere, and here so far] has been published on the Official Journal of the European Union: it is now 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 [see here for all the language versions].

Trivia: this new piece of EU legislation is not the longest piece of legislation within the EU copyright acquis.

The Enforcement Directive (or IPRED) is in fact longer (42 pages) than the DSM Directive (34 pages). However, it seems fair to say that the DSM Directive is the longest piece of EU legislation ever adopted relating exclusively to copyright.

Here's a table I have made which lists the various lengths of the directives and regulations that compose the EU copyright acquis, ordered from the shortest to the longest one:


EU legislation
No of pages in the OJ
Directive on the resale right for the benefit of the author of an original work of art ("Resale Right Directive"), 27 September 2001
5
Directive on the term of protection of copyright and certain related rights amending the previous 2006 Directive (“Term Directive”), 27 September 2011
5
Regulation on the cross-border exchange between the Union and third countries of accessible format copies of certain works and other subject matter protected by copyright and related rights for the benefit of persons who are blind, visually impaired or otherwise print-disabled (Regulation implementing the Marrakech Treaty in the EU), 13 September 2017
5
Directive on the coordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission ("Satellite and Cable Directive"), 27 September 1993
7
Directive on the legal protection of computer programs (“Software Directive”), 23 April 2009
7
Directive on rental right and lending right and on certain rights related to copyright in the field of intellectual property ("Rental and Lending Directive"), 12 December 2006
8
Directive on certain permitted uses of orphan works (“Orphan Works Directive”), 25 October 2012
8
Directive on certain permitted uses of certain works and other subject matter protected by copyright and related rights for the benefit of persons who are blind, visually impaired or otherwise print-disabled (Directive implementing the Marrakech Treaty in the EU), 13 September 2017
8
Directive on the legal protection of databases (“Database Directive”), 11 March 1996
9
Directive on the harmonisation of certain aspects of copyright and related rights in the information society ("InfoSoc Directive"), 22 May 2001
10
Directive 2019/789 laying down rules on the exercise of copyright and related rights applicable   to certain online transmissions of broadcasting organisations and retransmissions of television and radio programmes, and amending Council Directive 93/83/EEC (“New SatCab Directive”), 17 April 2019
10
Regulation on cross-border portability of online content services in the internal market ("Portability Regulation"), 14 June 2017
11
Directive on collective management of copyright and related rights and multi-territorial licensing of rights in musical works for online use in the internal market (“CRM Directive”), 26 February 2014
27
Directive 2019/790 on copyright and related rights in the Digital Single Market and amending Directives 96/9/EC and 2001/29/EC (“DSM Directive”), 17 April 2019

34
Directive on the enforcement of intellectual property right (“IPRED”), 29 April 2004
42

What happens now? The DSM Directive will enter into force 20 days after its publication on the Official Journal, that is on Friday, 7 June 2019 (see Article 31).

After this, Member States will have 24 months, ie until 7 June 2021, to transpose this new piece of EU legislation into their own laws (see Article 29). While some Member States, eg France, appear committed to a swift transposition of the directive, for others things might end up being a bit less smooth ...

[Originally published on The IPKat on 19 May 2019]