By Fabio Angelini, ECTA Copyright Committee Vice-Chair, Bugnion S.p.A. (IT)

Despite much fanfare and somewhat wishful thinking headlines by the European Commission (cf. ‘New EU copyright rules that will benefit creators, businesses and consumers start to apply'), 7 June 2021 marked another disappointing step in the so far quite arduous path of the 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 (the ‘New Copyright Directive’).

Indeed, while according to Art. 29 of the New Copyright Directive Member States were required to bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 7 June 2021, at this time, only a handful have done so.

To the best of my knowledge, only Denmark and Germany have actually passed bills to implement the full text of the New Copyright Directive, (cf. here), while the European Commission website reports that only France, Hungary and Czech Republic have notified the Commission of having implemented some part of the New Copyright Directive (cf. here).
Surely it did not help Member States that the European Commission waited until 4 June 2021 to publish its ‘Guidance on Article 17 of Directive 2019/790’ (possibly the most contested and controversial article of the New Copyright Directive), which is certainly an interesting document to read, but whose effectiveness at this time, when many Member States have already engaged in lengthy internal discussions and various draft bills are pending, is doubtful.

Another factor in the delay of implementation could also be the challenge by Poland at the Court of Justice (cf. case C-401/19, action brought on 24 May 2019 — Republic of Poland v European Parliament and Council of the European Union) where Poland is seeking the annulment of Article 17(4)(b) and Article 17(4)(c), in fine (i.e. the part containing the following wording: ‘and made best efforts to prevent their future uploads in accordance with point (b)’) or in the alternative, should the Court find that the contested provisions cannot be deleted from Article 17 without substantively changing the rules contained in the remaining provisions of that article, that the Court annul Article 17 in its entirety.

As widely reported, Poland alleged infringement of the right to freedom of expression and information guaranteed by Article 11 of the Charter of Fundamental Rights of the European Union, claiming specifically that the imposition on online content-sharing service providers of the obligation to make best efforts to ensure the unavailability of specific works and other subject-matter for which the right holders have provided the service providers with the relevant and necessary information and the imposition on online content-sharing service providers of the obligation to make best efforts to prevent the future uploads of protected works or other subject-matter for which the rightsholders have lodged a sufficiently substantiated notice, make it necessary for the service providers (in order to avoid liability) to carry out prior automatic verification (filtering) of content uploaded online by users, and therefore make it necessary to introduce preventive control mechanisms. Thus, according to Poland, such mechanisms undermine the essence of the right to freedom of expression and information and do not comply with the requirement that limitations imposed on that right be proportional and necessary.

The Advocate General had said it would render his opinion in April 21, but then the Court of Justice announced that the opinion would be delayed until July 15 (cf. here).

Thus, it is perhaps comprehensible that Member States are not rushing to implement the New Copyright Directive.

The ECTA Copyright Committee is closely following the implementation of the New Copyright Directive and welcomes contributions and comments by all ECTA members.

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