On Monday the 7th of June – the day of the implementation deadline for the DSM Directive – we held a special COMMUNIA Salon to mark the entry into force of the Directive, to assess the implementation process being made in the 27 Member States and to discuss the Article 17 implementation guidance published by the Commission just before the entry into force of the Directive.Â
The Salon kicked off with Teresa Nobre and Dimitar Dimitrov presenting our ongoing work supporting user rights’ advocates across the EU Member States to ensure a user rights’ friendly implementation of the Directive into national legislations (from 1:11 to 18:13 in the video recording). This was followed by the launch of the Eurovision DSM Contest, a new website which tracks the implementation progress for each Member State.Â
The second part of the event (from 20:00 in the recording onwards) consisted of a discussion on the Commission’s Article 17 guidance. Paul Keller opened the discussion by noting that, while the guidance establishes important user rights’ safeguards that put into question the implementation approach chosen by Member States – most notably by France and Denmark –, it also contains a massive loophole by allowing rightholders to “earmark” their content as economically valuable.
Felix Reda (GFF) followed up by comparing the guidance to the recently adopted German implementation law. He argued that the German law seemed to be largely in line with the principles established by the guidance and highlighted that the German rules, for certain types of “high-value” content, are highly targeted and limited. In this light, this is much less problematic than the “earmarking” mechanism introduced by the Directive.Â
João Quintais (IVIR) focussed his presentation on some of the other aspects of the Directive, such as the nature of the right established by Article 17. He has since also published these observations in a separate post on the Kluwer Copyright Blog.Â
Finally, Christophe Geiger (CEIPI) placed the guidance in the context of the pending Polish CJEU challenge of the fundamental rights compliance of Article 17. In his assessment the guidance is insufficient to save the filtering provisions in Article 17 from annulment by the Court.
During the subsequent discussion, Anneli Andresson from the European Commission’s copyright unit came to the defence of the much criticised “earmarking” mechanism contained in the final version of the guidance (from 1:12:45 in the recording onwards).Â
According to her, the Commission did not mean the earmarking mechanism to apply to content other than “time sensitive content”. According to her the Commission’s idea for the guidance “was not to extend the system to what is beyond what is not time sensitive” and that the mechanism is “temporary and only applies when the content is time sensitive”. She also pointed to safeguards including the requirement for rightholders to justify earmarking content and that services have the ability to apply safeguards against misuses, which include the possibility for rightholders to suspend the ability to “earmark”.
As welcome as these clarification by the Commission are, it remains to be seen what they are worth. The real test for the Commission’s Guidance will be the Polish challenge of the fundamental rights compliance of the filtering provisions in Article 17, that is currently pending before the CJEU. To get a first glimpse of the CJEU’s thinking on this issue, and if the guidance issued by the Commission does provide meaningful protection for users’ fundamental rights, we will have to wait until the 15th of July when Advocate General Øe will issue his opinion.
