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CJEU Advocate General Øe – The risks at EU level of a ‘This can only mean’ approach or the disconnect between the law and national reality

Brussels, BELGIUM – Today, 15 July 2021, Advocate General (AG) Saugmandsgaard Øe from the Court of Justice of the European Union (CJEU) delivered his Opinion in the case initiated in 2019 by the Polish government seeking the annulment of Article 17(4)(b) and (4)(c) of the Directive on Copyright in the Digital Single Market (DCDSM) (Case C-401/19).

The following statement can be attributed to Ms Caroline De Cock, Copyright for Creativity (C4C) coordinator:

“Whilst the first reaction is disappointment, a more detailed reading of the Opinion shows that the Advocate General bases his assessment of legality on the need to frame Article 17 with a multitude of safeguards protecting users against overblocking. It also strikes down the ‘earmarking of content’ approach proposed in the European Commission’s Article 17 Guidance, a clear signal that should also be taken into account in the ongoing DSA discussions: economic interests do not prevail over users’ fundamental rights. Manifest illegality, no mandatory filtering, preserving user exceptions are all conditions that the Advocate General considers sufficient to counter the negative effects of Article 17, yet most of these conditions are not met in the national implementations conducted or proposed by Member States so far. A ‘this can only mean’ approach at EU level has not proven sufficient so far at national level.’

AG Øe’s Opinion, which was initially expected on 22 April, argues that Article 17 is legal and hence the case brought by Poland should be rejected. The reasoning however for that legality to be established comprises a series of conditions that ensure limitations to users’ fundamental rights are kept within bounds. 

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 Opinion and reserve the right to update.]

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