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CJEU safeguards users’ freedom of expression by upholding an adequate standard for platforms’ knowledge

Brussels, BELGIUM – Today, 22 June 2021, the Court of Justice of the European Union (CJEU) issued its highly anticipated ruling (CJEU press release) in the joint cases revolving around YouTube and Uploaded (Frank Peterson v Google / Elsevier v Cyando – C-682/18C-683/18).

The following statement can be attributed to Ms Caroline De Cock, C4C coordinator:

“At a time where many stakeholders are pushing for any type of enhancement to the user experience by online platforms to be deemed the mark of an active role, it is reassuring to see that the CJEU upholds an adequate standard for what constitutes knowledge. Such a standard is the only way to avoid over-blocking and ensure that freedom of expression of millions of users remains a reality.”

Upholding a knowledge standard based on realistic expectations of online platforms is the only way to avoid over-blocking and ensure that freedom of expression of millions of users remains a reality, an approach that the upcoming Digital Services Act should respect.

C4C applauds the fact that the Court followed Advocate General (AG) Øe’s opinion that neither YouTube or Cyando were directly performing acts of communication to the public. The judgement is obviously limited to the case at hand, and does not consider the role of the Article 17 regime of the Directive on Copyright in the Digital Single Market. Nevertheless, it pushes back against rightholders’ claims that user-generated content (UGC) platforms, such as video-sharing platforms and file-hosting and -sharing platforms, are always playing an active role and should hence be automatically held liable.

C4C is a broad-based coalition that seeks an informed debate on how copyright can more effectively promote innovation, access, and creativity. We bring together libraries, scientific and research institutions, digital rights groups, technology businesses, and educational and cultural heritage institutions that share a common view on copyright.

For press inquiries on this please contact Ms De Cock at secretariat@copyright4creativity.eu or +32 474 84 05 15.

[Note: We are still analysing the judgment and reserve the right to update.]

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The EC Article 17 guidance: Lobby pressure and making do with a poorly drafted piece of legislation?

Brussels, BELGIUM – Today, 4 June the European Commission adopted its long-awaited guidance to support the Member States in their adoption of Article 17 of the Copyright Directive. The outcome flows out of six stakeholder dialogues held before the pandemic hit and a (restricted) consultation effort mid-2020 on the Commission’s initial thinking.

The following statements can be attributed to Ms Caroline De Cock, C4C coordinator:

  • “Considering the many translation errors surrounding the ‘best efforts’ concept, we welcome that this guidance sets in stone that the only accurate terminology is indeed ‘best’ as the standard for the efforts to be deployed, and mandate that ‘it should be transposed by the Member States in accordance with this guidance.”
  • “The final guidance could have been better, as the Commission decided to make do with a bad legislative text, and clearly gave in to the hefty lobbying by rightholders by carving out a specific regime for content ‘earmarked’ by them.”

The Commission’s adoption process for this guidance has been desperately slow. It is at least reassuring that the Commission acknowledges that platforms must meet a best effort standard in their action taking into account a need for proportionality. Considering the many translation errors surrounding the ‘best efforts’ concept, we welcome that this guidance set in stone that the only accurate terminology is indeed ‘best’ as the standard for the efforts to be deployed, and mandate that ‘it should be transposed by the Member States in accordance with this guidance and interpreted in light of the aim and the objectives of Article 17 and the text of the entire Article’. 

Furthermore, the guidance mirrors to a certain extent the analysis given by the Commission’s legal services at the CJEU hearing on the Polish Article 17 case: preserving users’ rights is an obligation of result, whilst combatting copyright infringing uses of content is an obligation of means, that should never impede recklessly on the freedoms of our citizens. 

But the final guidance could have been better, as the Commission decided to make do with a bad legislative text, and clearly gave in to the hefty lobbying by rightholders by carving out a specific regime for content ‘earmarked’ by them.

See COMMUNIA’s flowchart interpreting the regulatory framework flowing out of Article 17 based on the EC’s guidance (‘earmarking’ mechanism highlighted in red):

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