I shall use the terms
Directive of the European Parliament and of the Council of
Directive of the European Parliament and of the Council of
Judgment of
Judgment of
Judgment of
I should point out at this point that, after the drafting of this Opinion, in the course of its translation,
Member States shall provide for the exclusive right to authorise or prohibit the making available to the public, by wire or wireless means, in such a way that members of the public may access them from a place and at a time individually chosen by them:
… … …
If no authorisation is granted, online content-sharing service providers shall be liable for unauthorised acts of communication to the public, including making available to the public, of copyright-protected works and other subject matter, unless the service providers demonstrate that they have: In determining whether the service provider has complied with its obligations under paragraph 4, and in light of the principle of proportionality, the following elements, among others, shall be taken into account: … The cooperation between online content-sharing service providers and rightholders shall not result in the prevention of the availability of works or other subject matter uploaded by users, which do not infringe copyright and related rights, including where such works or other subject matter are covered by an exception or limitation. Member States shall ensure that users in each Member State are able to rely on any of the following existing exceptions or limitations when uploading and making available content generated by users on online content-sharing services:
Proposal for a Directive of the European Parliament and of the Council on copyright in the Digital Single Market (COM(2016) 593 final) (
See Explanatory Memorandum of the proposal for a directive, pp. 2 and 3.
See the proposal for a directive, p. 3, and
See, in relation to the YouTube platform, my Opinion in Joined Cases
For example, several hundred thousand videos are published every day on YouTube by users of that platform, who, if Google is to be believed, number more than 1.9 thousand million. See my Opinion in Joined Cases
See Impact Assessment, Part 1/3, pp. 137, 139 and 142, and Part 3/3, Annex 12B.
Article 3(1) of Directive 2001/29 therefore contains, strictly speaking, a
See the list in Article 3(2) of Directive 2001/29, reproduced in point 9 of this Opinion.
Strictly speaking, Article 3(2) of Directive 2001/29 grants only holders of related rights an exclusive right to make their protected subject matter
Subject to the exceptions and limitations to copyright (see point 144 of this Opinion).
See, inter alia, judgment of
See, in that regard, my Opinion in Joined Cases
Article 14(1) of Directive 2000/31 applies horizontally to all forms of content and liability, irrespective of the area of law concerned (intellectual property, defamation, online hate, and so forth). See my Opinion in Joined Cases
See, in that regard, my Opinion in Joined Cases
It has just done so, to some extent, in its judgment of
See Impact Assessment, Part 1/3, p. 140.
See Explanatory Memorandum of the proposal for a directive, p. 3.
See point 57 of this Opinion.
See the third paragraph of recital 38, recital 39 and Article 13(1) of the proposal for a directive.
See, inter alia, the petition
Directive 2019/790 was not adopted unanimously. In the final vote in the Council, six Member States (the Italian Republic, the Grand Duchy of Luxembourg, the Kingdom of the Netherlands, the Republic of Poland, the Republic of Finland and the Kingdom of Sweden) opposed the text, while three Member States (the Kingdom of Belgium, the Republic of Estonia and the Republic of Slovenia) abstained (see document 8612/19 of
Directive 2019/790 was published in the
For convenience, I shall refer to
Recital 62 of Directive 2019/790 states, moreover, that the concept of an
The second subparagraph of Article 2(6) of Directive 2019/790 contains a non-exhaustive list of service providers to whom Article 17 of that directive should not apply.
This liability does not replace, but is additional to the liability of users who upload content, who themselves perform separate acts of
Recital 64 of Directive 2019/790 states that this is a
Recital 3 of Directive 2019/790.
See recital 61 of Directive 2019/790.
See recital 61 of Directive 2019/790, which states that
As stated in the second subparagraph of Article 17(3) of Directive 2019/790, that must not affect the application of Article 14 to sharing service providers for purposes falling outside the scope of that directive. As I explained in my Opinion in Joined Cases
This must be understood as meaning that providers are liable for
See my Opinion in Joined Cases
See Article 13 of Directive 2004/48/EC of the European Parliament and of the Council of
See my Opinion in Joined Cases
See recital 66 of Directive 2019/790.
With the exception of Article 17(6) of Directive 2019/790 which lays down specific conditions for exemption from liability for
annul Article 17(4)(b) and (c), in the alternative, should the Court consider that the contested provisions cannot be separated from the remainder of Article 17 of that directive without changing its substance, annul that article in its entirety; order the Parliament and the Council to pay the costs.
dismiss the action as unfounded; order the Republic of Poland to pay the costs.
reject the principal claims as inadmissible; in the alternative, dismiss the action as unfounded in its entirety; order the Republic of Poland to pay the costs.
I shall therefore confine my examination to that fundamental right, irrespective of the questions that Article 17 of Directive 2019/790 may raise in relation to other fundamental rights guaranteed by the Charter, such as the freedom to conduct a business (Article 16).
See, inter alia, judgment of
With the exception of the definition of
In accordance with Article 15 of Directive 2000/31 (see point 105 of this Opinion). That said, certain monitoring obligations may be imposed on providers, independently of that exemption from liability, by means of injunctions (see, inter alia, Article 14(3) of Directive 2000/31 and Article 8(3) of Directive 2001/29).
See, for more details, my Opinion in Joined Cases
The condition provided for in Article 17(4)(c),
An obligation to use best endeavours requires the debtor to make best efforts to achieve a result without being obliged to achieve it. See, to that effect, judgments of
See the second paragraph of recital 66 of Directive 2019/790.
Accordingly, Article 17(4) of Directive 2019/790 is, in essence, a system of liability for
See Impact Assessment, Part 1/3, p. 140.
See my Opinion in Joined Cases
See Impact Assessment, Part 1/3, p. 137, and recital 61 of Directive 2019/790.
See, inter alia, judgment of
The tools that use the
These tools are used to detect other types of illegal content (child pornography, insulting content, and so forth). See Mochon, J.‑P., op. cit.
The most famous in this respect is undoubtedly the
In practice, the system involves generating
For more details on these tools and their providers, see Impact Assessment, Part 3/3, pp. 164-172, and Mochon, J.‑P., op. cit.
See point 22 of this Opinion.
See Impact Assessment, Part 1/3, pp. 140-144. See, to the same effect, Communication from the Commission,
Recital 68 of Directive 2019/790 merely states that
See, to the same effect, Parliament press release,
That is also the opinion of many experts in the field. See, in particular, Grisse, K.,
See Lambrecht, M., op. cit., p. 71:
That does not mean that sharing service providers could not have certain content checked by their employees at all. Nevertheless, those providers will have to use automatic tools in order, at the very least, to reduce the mass of content which must undergo such verification (see point 211 of this Opinion).
Some operators have apparently started to develop and use tools which can identify content using artificial intelligence. See, inter alia, Mochon, J.‑P., op. cit., p. 35. In any event, this, by its very nature, is still an automatic content recognition technique.
In particular, the French Government acknowledged that
See also the second paragraph of recital 66 of Directive 2019/790 (
See inter alia, Mochon, J.‑P., op. cit., p. 12. This seems to be the case, inter alia, for gameplay footage of video games. In the absence of software tools which enable certain types of protected works and subject matter to be filtered automatically and effectively, it cannot be ruled out that the scope of the obligations of diligence imposed on sharing service providers is, in that regard, significantly reduced, pursuant to the principle of proportionality. See, to that effect, the second paragraph of recital 66 of Directive 2019/790 according to which
See Grisse, K., op. cit., p. 895, and Frosio, G., and Mendis, S., op. cit., p. 562.
See, by analogy, judgment of
Furthermore, content recognition tools will, in many cases, enable sharing service providers to fulfil their transparency obligation imposed on them in the second subparagraph of Article 17(8) of Directive 2019/790. In accordance with that provision, those providers must provide rightholders with information on the use of content covered by any licensing agreements concluded with them. Those tools in fact make it possible to gather statistics, which are often very precise, regarding the audience of content present on those services (see Impact Assessment, Part 3/3, p. 165, and point 58 of this Opinion).
See, inter alia, judgment of
See, by analogy, ECtHR,
Although the ECHR does not recognise such a freedom as an autonomous right, the
To my knowledge, the only opinions, information or ideas which are excluded automatically from the protection conferred by Article 10 of the ECHR are hate speech, on the ground that it is incompatible with the values proclaimed and guaranteed by that convention (see, inter alia, ECtHR,
See, inter alia, ECtHR,
See ECtHR,
See, by analogy, the judgments in
See, by analogy, ECtHR,
Under those circumstances, the question which arises in respect of that freedom is to what extent, in view of the importance acquired by those services – which have become essential infrastructures for the exercise of the freedom of online communication (see point 103 of this Opinion) – must their providers respect the fundamental rights of users and to what extent are public authorities required, under the
See, by analogy, ECtHR,
See, by analogy, ECtHR,
See footnote 45 of this Opinion.
I would add, in conclusion, that the very fact that sharing service providers are required indirectly to carry out such monitoring of their services constitutes, in itself, an
See, inter alia, ECtHR,
See point 71 of this Opinion. Moreover, under Article 53 of the Charter, the level of protection afforded by that instrument can never be lower than that guaranteed by the ECHR. To that end, the Court must adopt an interpretation of the conditions laid down in Article 52(1) of the Charter which is at least as strict as the ECtHR’s interpretation of the conditions set out in Article 10(2) of the ECHR.
See, inter alia, judgment of
See, inter alia, judgment of
See, inter alia, ECtHR,
To that effect, the ECtHR has repeatedly held that
The mere fact that, in the present case, the parties and the interveners have put forward different interpretations of Article 17 of Directive 2019/790 (see points 168 and 170 of this Opinion) does not mean that the requirement of
See, inter alia, judgment of
See, inter alia, ECtHR,
See, by analogy, judgment of
See point 128 et seq. of this Opinion.
See my Opinion in
See points 117 and 129 of this Opinion.
See inter alia, ECtHR,
I would point out that, for that reason, freedom of expression is an essential foundation of any democratic society. See, inter alia, judgment of
See, first, judgment of
See, inter alia, ECtHR,
See, inter alia, Recommendation CM/Rec(2018)2 of the Committee of Ministers to Member States on the roles and responsibilities of Internet intermediaries, adopted by the Committee of Ministers on
See Conseil constitutionnel (Constitutional Council, France), decision No 2020-801 DC of
That is to say, by means of a liability exemption mechanism, as in the present case (see point 62 of this Opinion).
See Opinion of Advocate General Poiares Maduro in
See, to the same effect, Smith, G.,
See the judgments in
The Court has repeatedly held that the national rules setting out the rules for the operation of such injunctions, and likewise their application by the national courts, must observe the prohibition of
See recital 45 and Article 14(3) of Directive 2000/31.
See recital 47 of Directive 2000/31 (
See ECtHR,
See point 138 of this Opinion.
See, to the same effect, Grisse, K., op. cit., p. 897; Spindler, G.,
I would point out that, contrary to what the Parliament suggests, that case-law is relevant in the present case even though it concerns injunctions issued by national courts and not an act adopted by the EU legislature. The concept of
Judgment of
The judgment in
See paragraphs 35 to 38 of that judgment.
Judgment of
The question could be seriously raised as to whether the contested provisions entail a
I would point out that that judgment was delivered after the present action was brought.
See Opinion of Advocate General Szpunar in
The judgment in
The judgment in
I would point out that, although the judgment in
See points 194 to 199 of this Opinion.
See points 200 to 203 of this Opinion.
I note, in addition, that the EU legislature reaffirmed the prohibition of
See, inter alia, communications from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions of
See, inter alia, Regulation (EU) 2021/784 of the European Parliament and of the Council of
See point 84 of this Opinion.
See points 140 to 153 of this Opinion. See also, to the same effect, Recommendation 2018/334 (recitals 24, 27, 36 and paragraphs 19 to 21).
See point 28 of this Opinion.
See also Article 27(2) of the Universal Declaration of Human Rights and Article 15 of the International Covenant on Economic, Social and Cultural Rights.
See, inter alia, ECtHR,
See, by analogy, judgments of
See, inter alia, judgments of
See, inter alia, judgment of
Since, I recall, the contested provisions apply only in respect of the protected works and subject matter identified by rightholders for which the sharing service providers did not obtain authorisation from those rightholders.
See point 53 of this Opinion. The fact that any filtering may be circumvented by malicious users (see, however, with regard to the robustness of
See, inter alia, judgments of
See footnote 172 of this Opinion.
See, inter alia, judgment of
See, by analogy, judgment of
See, inter alia, judgment of
See, inter alia, judgment of
See recitals 1 to 7, 40, 41 and 45 to 49 of Directive 2000/31, and my Opinion in Joined Cases
See my Opinion in Joined Cases
See, inter alia, judgment of
See Recommendation CM/Rec(2018)2 on the roles and responsibilities of Internet intermediaries, preamble, point 9.
See, inter alia, ECtHR,
See, by analogy, ECtHR,
Some legal writers maintain that there is no empirical evidence that the
I would point out that it is, of course, for the EU legislature to decide on the level of protection it wishes to afford to copyright and related rights in the European Union.
See Impact Assessment, Part 1/3, pp. 137-144, 175. See, to the same effect, judgments of
See point 14 of this Opinion.
Nevertheless, the fact that those providers do not pre-select the information uploaded to their services (see point 32 of this Opinion) is, in my view, a decisive difference which prevents them from being treated in the same way as editors.
See, to that effect, Recommendation CM/Rec(2018)2 on the roles and responsibilities of Internet intermediaries, preamble, points 4 and 5, and Appendix, point 1.3.9. For
See ECtHR,
See ECtHR,
See ECtHR,
I would point out that, in that case, the operator of the news portal had to monitor that portal to search for
See, inter alia, Balkin, J.‑M., op. cit., p. 2309, and ECtHR,
Particularly since,
See, inter alia, judgments of
See Article 5(3)(d) of Directive 2001/29 and judgments of
See Article 5(3)(k) of Directive 2001/29 and judgment of
I am thinking here of memes, film reviews, misappropriation and a whole raft of other types of content for entertainment or education which are abundant on those services and which, moreover, may in themselves constitute works which, often, are
For example, as regards the exception provided for in Article 5(3)(d) of Directive 2001/29, it is necessary to ascertain whether the user has
The analysis is further complicated by the fact that the applicable exceptions and limitations and their scope are likely to vary from one national law to another. Although the list in Article 5 of Directive 2001/29 is exhaustive, it gives each Member State the
See, by analogy, my Opinion in Joined Cases
See, to that effect, paragraph 52 of the first judgment and paragraph 50 of the second judgment. See also my Opinion in Joined Cases
See point 58 of this Opinion.
See, inter alia, Commission document,
See, inter alia, Grisse, K., op. cit., p. 887; Dusollier, S., op. cit., p. 1018; and Lambrecht, M., op. cit., p. 73. See also Jacques, S., Garstka, K., Hviid, M., and Street, J.,
The related right of phonogram producers also entails specific risks in that regard. For example, such a producer may identify, for the purposes of blocking, the recording of a performance of a Chopin nocturne (a work which is also in the public domain) over which it holds rights. Since some tools, such as Content ID, are able to recognise not only content which reproduces excerpts
In particular, for that reason, Content ID has, it seems, already mistaken innocent content for protected works. See, for various examples, Garstka, K.,
See, by analogy, judgments of
See points 84 and 115 of this Opinion.
See, to that effect, ECtHR,
See point 84 of this Opinion.
See judgment of
See points 210 to 213 of this Opinion.
In that regard, I note that the ECtHR has repeatedly held that the
These terms must be understood as meaning the filtering and blocking measures which those providers must take pursuant to the contested provisions. See the first paragraph of recital 66 of Directive 2019/790.
Also covered are, inter alia, the use of works and other protected subject matter covered by licensing agreements concluded by users (see the first paragraph of recital 66 of Directive 2019/790) and the use of works in the public domain.
The exceptions and limitations in question are also provided for, as I stated in footnotes 175 and 176 of this Opinion, in Article 5(3)(d) and (k) of Directive 2001/29.
They may do so inter alia before national courts (see the second subparagraph of Article 17(9) of Directive 2019/790:
See judgments of
Although paragraph 7 is ambiguous in that regard, this interpretation is clear from recital 70 of Directive 2019/790 (
See footnote 179 of this Opinion.
At least as far as the use of protected subject matter on sharing services is concerned.
To that extent, Article 17(7) of Directive 2019/790 limits the freedom of sharing service providers to conduct a business in order to ensure freedom of expression for users. Nevertheless, those providers remain free to remove content which falls within the scope of exceptions or limitations on grounds
See, to the same effect, Leistner, M., op. cit., pp. 165 and 166. Any provision to the contrary in those terms and conditions or in such contractual agreements would therefore, in my eyes, be incompatible with Article 17(7) of Directive 2019/790.
See the fourth subparagraph of Article 17(9) of Directive 2019/790. The information given to users about their right to use protected subject matter under exceptions or limitations, and about the limits of that right, is essential in order to support the exercise by those users, of their freedom of expression and creation, whilst reducing the risk of accidental infringements of copyright.
See Impact Assessment, Part 1/3, pp. 140 and 141, and footnote 422.
See the first paragraph of recital 70 of Directive 2019/790.
The French Government also refers to possible voluntary measures taken by rightholders (see footnote 252 of this Opinion).
This is all the more obvious in the English-language version of Directive 2019/790 (
See, first,
See, by analogy, the Opinion of Advocate General Wathelet in
In that regard, I recall that, in accordance with the Court’s settled case-law,
Directive 2000/31 does not contain any obligation for intermediary service providers to provide for a
Moreover, in the English-language version of Directive 2019/790, the same adjective is used in Article 17(4)(c) and the first subparagraph of Article 17(9) of that directive (
Judgment of
See, first, judgments of
Judgment of
Judgment of
See, inter alia, ECtHR,
See, to that effect, the judgment in
That tendency on the part of users not to assert their rights has been documented in Europe and the United States. See, inter alia, Urban, J.‑M., Karaganis, J., and Schofield, B.,
See, to the same effect, Spindler, G., op. cit., p. 355. This would also risk depriving the public of their right to access that legitimate content which has been blocked unfairly.
For example, a reaction video to a trailer for a video game or a film is searched for around the time when that trailer is released. Similarly, a parody video linked to a recent political scandal is, as a general rule, watched immediately after the scandal. See, in that regard, Garstka, K., op. cit., p. 339.
Moreover, the ECtHR has repeatedly held that
See, inter alia, judgments of
See my Opinion in Joined Cases
I am well aware of the fact that recital 66 of Directive 2019/790 states, in its third paragraph, in the French version of that directive, that sharing service providers may be exempted from liability, where protected subject matter is unlawfully uploaded to their service, only by demonstrating that they have
See footnote 249 of this Opinion.
See, by contrast, ECtHR,
I have explained the fundamental nature of the prohibition of
See point 112 of this Opinion.
The judgment in
The judgment in
See recital 59 of Directive 2001/29, in accordance with which
See points 142, 143 and 146 of this Opinion.
See my Opinion in Joined Cases
See, to that effect, Recommendation 2018/334 (recital 25:
The ECtHR emphasised that at issue were
See ECtHR,
See point 221 of that Opinion.
See, to the same effect, Quintais, J., Frosio, G., van Gompel, S., et al.,
In other words, I am referring to what are sometimes described as
The judgment in
In my view, the
That interpretation cannot be called into question by the argument put forward by the applicant and the French Government that the word
See point 52 of this Opinion. See, to the same effect, Geiger, C., Jütte, B.‑J.,
In general, it is for the administrative and judicial authorities of those States to supervise how the contested provisions are applied by sharing service providers and to ensure that users are able effectively to avail themselves of their right to legitimate uses, in accordance with Article 17(7) of Directive 2019/790. On that point, the Republic of Poland has submitted that that directive does not contain any provision on the liability of sharing service providers vis-à-vis users in the event of infringement of paragraph 7. In my view, such liability must be found in the Member States’ national law, in accordance with the principle of procedural autonomy. Other effective, dissuasive and proportionate sanctions should be provided for therein. Moreover, since observance of users’ rights is incorporated in the
In that regard, the approach explained by the Commission in its document
The French Government submits that the implementation of recognition tools is based on management rules set by the rightholders and that, for example, in the field of cinema, those rightholders would generally tolerate, in exchange for a proportion of the revenue linked with the
In my view, by defining those
See, to the same effect, Grisse, K., op. cit., p. 898.
I am thinking of, for example, the illegal posting on a sharing service of a film which has recently or even not yet been released.
See, to the same effect, Lambrecht, M., op. cit., pp. 89 and 90.
See, inter alia, judgment of
In particular, it is not a question of laying down a
That is, moreover, without prejudice to the possibility for rightholders to obtain a court injunction (see the first paragraph of recital 66 of Directive 2019/790), or even bring an action against the user responsible.
See, to the same effect, Cabay, J., op. cit., p. 221, and Lambrecht, M., op. cit., p. 90. In that connection, a practical solution could be to inform rightholders as soon as content that reproduces their protected works is uploaded, so that they can, where appropriate, quickly prepare a reasoned request for access to be disabled (see the second subparagraph of Article 17(9) of Directive 2019/790). Those rightholders, therefore, in any event, would not be responsible for monitoring the sharing services themselves in order to discover and locate the content in question, which would be detected automatically for them using the recognition tool.
I note, moreover, that, for content the unlawfulness of which cannot be regarded as manifest, the ECtHR has considered the
See, by analogy, my Opinion in Joined Cases
And, as I stated in point 178 of this Opinion, sharing service providers will have to examine those complaints and notifications with the same promptness – and the same diligence.
I wish to make one final point. The defendants and the interveners have emphasised that the
Judgment of
See judgment of
See Communication from the Commission,
The Commission refers to subject matter which has a particular economic value during a certain period. However, the
dismiss the action brought by the Republic of Poland; order that Member State to pay the costs; and order the Kingdom of Spain, the French Republic and the European Commission to bear their own costs.