We have already covered the Copyright Directive extensively at MediaWrites, including the adoption of the final text, which must now be implemented by Member States. However, the story is far from over. A new development means that a crucial part of the Directive may actually be annulled. In effect, EU Member States would not transpose it into their national laws, which would make a key provision of the Directive moot.

The Polish government has been very critical of the Copyright Directive, having voiced concerns over its effect on the freedom of speech. The main target is the Directive’s Article 17 (formerly Article 13). In essence, this Article states that content-sharing online platforms, such as YouTube, are required to obtain licences from rights holders to broadcast copyrighted works. If they do not hold such a licence, they will be liable for copyright infringement – unless they can demonstrate that they have made best efforts to obtain one, and – crucially – that they have also made best efforts to “ensure the unavailability” of specific works on the platform, if rights holders requested their removal, and “to prevent their future uploads”. These measures have often been described as forcing platforms to filter content before it is published. Actually, the issue is more complex, and for those who need more information on Article 17, we have a comprehensive recap available here.

The Polish government has stated that it intends to implement the Directive minimalistically, “in a way that will preserve the freedom [of Internet users]”. The government has also taken a step further – it has brought an action before the Court of Justice of the EU (CJEU) requesting that the crucial part of Article 17 be annulled.

In its application, Poland argues that imposing the obligation on the platforms to make best efforts to ensure that specific works are unavailable, and to prevent future uploads of them, will in fact make it necessary for the platforms to automatically verify (filter) the user-uploaded content. According to the application, such “preventive control” mechanisms would “undermine the essence of the right of freedom of expression and information”, which would violate the Charter of Fundamental Rights of the EU. Poland argues that such obligations are not a proportional and necessary limitation on freedom of expression. Poland’s arguments are similar to those raised by opponents of the Directive, such as platform operators and civil rights advocacy groups.

If the CJEU supports this view and annuls the relevant provisions of the Directive, Member States will not be bound to implement them into their national laws, thereby a crucial part of the Directive would perish. What is more, in the application Poland has also requested that if the CJEU finds that the contested provisions may not be annulled without substantively changing the remaining provisions of Article 17, then it should annul the entire Article 17. That would have far-reaching consequences as it would affect other crucial aspects of the Directive, aimed at addressing the “value gap” problem.

It remains to be seen whether the CJEU will find Poland’s claims justified, but the impact of the judgment will nevertheless be significant. This case forms yet another part of the ongoing debate between the seemingly divergent interests of copyright holders and content platforms, a dispute that will likely continue even when (if?) the Directive becomes adopted across the EU. Even in Poland, while the majority of the public opposes the Directive, it has several vocal supporters including influential artists and publishers.