The European Commission has issued its guidance to EU member states on Article 17 of Directive 2019/790 on Copyright in the Digital Single Market (DSM Directive).
Article 17 of the DSM Directive deals with the use of protected content by online content-sharing service providers. It is informally referred to as the ‘upload filter’ provision and is one of the most controversial provisions of the DSM Directive. It makes online content-sharing platforms responsible for instances of copyright infringement committed by their users unless these platforms demonstrate they have “made best efforts to ensure the unavailability” and to “prevent … future uploads” of these works.
The guidance now specifies how EU Member states shall interpret and transpose this regulation into their national legislation, including definitions of online content-sharing service providers, authorisation models with rights holders, liability mechanisms, best efforts, notice of takedown and notice of staydown, and others.
Article 17 of the DSM Directive is currently subject to the proceedings at the Court of Justice of the European Union in the case C 401/19, Republic of Poland v European Parliament and Council of the European Union. Poland seeks to annul provisions of Article 17 of the DSM Directive, arguing that they force online platforms to introduce upload filters and this undermines the right to freedom of expression, therefore violating the EU Charter of Fundamental Rights.