15.07.2021

Copyright Before the ECJ: Association of the Internet Industry Sees Last Chance to Prevent Upload Filters

Poland’s ECJ challenge also influences German and European copyright regulations
With a lawsuit before the European Court of Justice (ECJ), Poland wants to overturn Article 17 of the controversial EU copyright reform. In May 2019, the Polish government had already objected to the regulations on upload filters. The Advocate General’s opinion is now expected for today, Thursday. They could significantly influence the ECJ ruling on EU copyright reform that will follow in the coming months.

eco – Association of the Internet Industry warns of legal uncertainties in the German and EU-wide implementation of the Copyright Directive. With its decision, the ECJ has the chance to prevent the controversial upload filters criticised by the eco Association and to clarify that they are not compatible with EU law.

eco’s Managing Director Alexander Rabe says:

“The EU copyright reform clearly shows that the Internet knows no national borders. The EU had wanted to create uniform regulations on copyright, but it has achieved the opposite: What remains is a European patchwork of individual national laws that cannot be implemented in this way. The fact is, however, that upload filters decisively limit the use of online platforms. Upload filters mean a break for freedom of expression and the free Internet across Europe.”

What are the implications for German legislation?
In Germany, the law implementing the upload filters of the EU copyright reform has already been passed and will come into force on 1 August. An ECJ ruling in favour of Poland could thus also influence German legislation. “If the ECJ overturns the copyright reform, this will also have an impact on the German regulation on upload filters”, Rabe continues. ”The German legal text, depending on the extent of the repeal of Article 17, whether only in parts or as a whole, would thus de facto no longer be applicable.”

What does Poland’s challenge mean for the European context?
Even though the deadline for transposing the Copyright Directive already expired on 7 June, the majority of EU Member States have not yet implemented the rules. If the lawsuit is successful, the regulations on upload filters cannot be applied. Then the implementation of the Copyright Directive in the Member States would have to be improved.

“It is to be expected that the Commission will refrain from such emphasis until the ECJ decision”, says Rabe. “Should the ECJ follow Poland’s demand, it is likely that the regulations on upload filters will not find their way into national laws in many countries.”

In addition to Poland, Italy, Luxembourg, the Netherlands, Finland and Sweden also voted against the reform in 2019. The extent to which the individual Member States’ regulations already in force would then be repealed or simply become inapplicable would depend very much on the decision of the ECJ.

eco on the Amendment to the German Act against Restraints of Competition (GWB): “Harmonised EU Approach Instead of National Go-it-Alone Efforts”