©-LAW

  On 26 April 2022, the Court of Justice of the European Union (CJEU) delivered its long-awaited judgment in   Poland v European Parliament and Council  (C-401/19) . The Court held Article 17 of the   DSM Directive   compatible with freedom of expression and information under Article 11 of the   EU Charter of Fundamental Rights . In so doing, it rejected the request of the Republic of Poland to annul said provision. The Court also noted how currently no valid alternatives appear to exist to the use of automatic recognition and filtering tools in order to comply with the obligations under Article 17(4)(b)-(c) (para 54). The judgment considers that the liability regime established under Article 17(4) represents a restriction on freedom of expression/information (para 58). Nevertheless such a restriction is not undue. Internal safeguards are provided, of which six key ones are identified (see paras 85-98). Member States are required to consider such safeguards...

Merpel celebrated Halloween in Florence Together with Spain   [Katpost  here ] , this week it has been Italy’s turn to transpose the   DSM Directive   into its own law. Next week, the   Legislative Decree   approved by the Council of Ministers will be published on the Italian Official Journal ( Gazzetta Ufficiale ). During the summer, The IPKat  discussed  the content of some of the most ‘interesting’ draft provisions that Italy was considering adopting to implement the Directive into its own law. The final text of the Italian Legislative Decree does not substantially depart from that draft legislation. Let’s take a closer look at of some of the provisions – online content sharing service providers (OCSSPs), text and data mining (TDM), press publishers’ right – eventually adopted and see what mark the new Italian provisions may deserve from the perspective of compliance with their EU counterparts – respectively: Articles 17, 3-4, and 15 of the Dir...

Beach + sunbathing + copyright = the perfect summer As readers with an interest in EU copyright are well aware, EU Member States had time until 7 June to  transpose the   DSM Directive 2019/790   [Katposts  here ]   into their own national laws. With a few exceptions  [see Communia tracker  here ] , because of a number of reasons - ranging from COVID to the delayed  Article 17 Commission's guidance   [Katpost  here ]  to some important pending rulings of the Court of Justice of the European Union (CJEU), the majority of EU Member States missed this deadline. This said, based on what is already available, it is apparent that the provisions that the EU legislature adopted in 2019 to establish a ‘Digital Single Market’ will be implemented in different – if not altogether creative – ways across the EU. It is true that there are provisions in the Directive that leave Member States significant discretion. Such discretion ranges from the v...

AG Saugmandsgaard Øe Is Article 17 of   Directive 2019/790   (DSMD) compatible with the   EU Charter of Fundamental Rights , notably its Article 11 and the principle of freedom of expression and information? According to Poland, the answer should be in the negative.  Indeed, shortly after the adoption of the Directive in 2019, this country lodged a complaint ( C-401/19 ) before the Court of Justice of the European Union (CJEU), seeking the partial or - as a subsidiary claim - complete annulment of the provision. This morning, Advocate General (AG) Saugmandsgaard Øe released his  Opinion , advising the Court to rule that Article 17 is compatible with the Charter and should not be annulled. All this is true insofar as the monitoring obligations of online content sharing service providers (OCSSPs) are circumscribed by sufficient safeguards, which the provision itself contains, so to minimize the impact of the resulting filtering activities on users’ freedom of expr...

  Today, after several months of waiting and with the deadline for the national transposition of the   DSM Directive  being just a weekend away (it will be on Monday, 7 June), the European Commission has issued its   Guidance on the application of Article 17 .  Here are 3 key highlights: Article 17 not a  sui generis  right of communication to the public An actual  sui generis  Kat First, the Guidance takes a different view from the  one  provisionally expressed in September 2020. It states that Article 17 is  lex specialis  to the  InfoSoc Directive , but also that the provision does not create a special/ sui generis  right of communication to the public compared to the one already contained in Article 3 of the latter: Article 17 does not affect the concept of communication to the public or of making content available to the public elsewhere under Union law, nor does it affect the possible application of Article...

Article 17 of the Copyright DSM Directive and the InfoSoc Directive: a special relationship? What is the legal nature of Article 17 of the  Copyright DSM Directive ? What is the relationship InfoSoc Directive ? between that provision and the  These questions, which  might  look at first sight academic in both nature and significance, are actually of great practical relevance, including to determine the room for manoeuvre enjoyed by EU Member States during the (ongoing) national transposition phase. In this sense, it is notable that the German Government has been moving from the idea that the freedom accorded under Article 17 is such that Member States are inter alia entitled to decide whether to introduce exceptions or limitations beyond  both  those specifically referred to in Article 17(7)  and  those listed in Article 5 of the InfoSoc Directive (see the proposed ‘de minimis’ remunerated ‘authorized use’ in  §6 of the German ...

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, t...