On the 2022 World Intellectual Property Day, the Court of Justice of the European Union issued its ruling on the case against Article 17 of the Copyright Directive (C-401/19). Poland had brought that case before the court hoping for the declaration of its illegality on the basis of an alleged infringement of the right to freedom of expression and information.
Article 17 is without a doubt the most discussed article of the most discussed EU directive in recent European history. It was introduced with the main purpose of closing of the so-called value gap, a term used to point out the enormous difference in the unprecedented profits major online platforms such as Facebook, Youtube and TikTok make by providing access to vast amounts of musical and audiovisual content and the almost complete lack of remuneration for the right holders of that content.
The obligation to install so-called filters that make it possible to more quickly detect and possibly block unlicensed content was seen by many as the end of the right to free speech and even the end of the internet, a view shared by Poland.
The Court did not follow Poland’s reasoning and ruled that the obligations for the online content-sharing service providers (OCSSPs) have been accompanied by appropriate safeguards in order to ensure the respect for the right to freedom of expression and information of the users of those services and a fair balance between that right, on the one hand, and the right to intellectual property on the other.
Many stakeholders in the creative industries are understandably delighted with the judgement and now call upon Member States to transpose the directive without further delay and without any deviation from the language of the directive, which allegedly has all the necessary safeguards.
Performers and their collective management societies, are however less enthusiastic about the completeness of article 17.
The reality is that where article 17 creates an enormous new revenue stream for the creative industries, the bare wording of article 17 itself has failed in its well-intentioned aim to provide a guarantee that all right holders are entitled to a part of this. And that applies above all to those right holders who are primarily targeted by Article 17(2) of the Charter of Fundamental Rights of the European Union: the human beings (not the corporations) behind the content, including a large number of performers. Performers are known to be in a weaker negotiation position when transferring their (human) rights to producers, including the rights that allow producers now to permit the use of their performances by these so-called OCSSPs.
When the Court states that “Member States must, when transposing Article 17 of Directive 2019/790 into their national law, take care to act on the basis of an interpretation of that provision which allows a fair balance to be struck between the various fundamental rights protected by the Charter.” Member States have an obligation to find a balance between the rights this charter offers the human beings that are part of this society, as creator or as user.
Article 17 is not drafted in a way that naturally enforces this balance. It has not been prepared taking into account the rights conferred by the EU Charter. It has been prepared solely with the guidelines on copyright and neighbouring rights in mind. Rights that – unlike human rights – are transferable and negotiable. A literal transposition is therefore no guarantee that the task that Member States receive from the CJEU will be fulfilled. More is needed.
However, achieving that “more” is not a difficult task for member states to fulfil. At the moment 3 Member States have already foreseen that “more”. Spain already had a generally applicable right to remuneration for performers, which now also applies to the OCSSPs. With a view to guaranteeing the right to fair remuneration as laid down in Article 18 of the Copyright Directive, Germany has introduced a new right to remuneration for authors and performers that guarantees them a direct share of the new revenue stream article 17 initiates. And finally, Slovakia has recently introduced a limited version of that German example.
Three countries is not enough. All member states should transpose article 17 in a way that closes the value gap for all right holders, including performers. And there are grounds to argue that Article 18 even requires them to do so!
AEPO-ARTIS, together with the 650,000 performers its members represent, welcomes the ruling of the Court but calls on the Member States to include their fundamental right to be fairly remunerated in the balanced transposition of Article 17.
