The EC Article 17 guidance: Lobby pressure and making do with a poorly drafted piece of legislation?

Brussels, BELGIUM – Today, 4 June the European Commission adopted its long-awaited guidance to support the Member States in their adoption of Article 17 of the Copyright Directive. The outcome flows out of six stakeholder dialogues held before the pandemic hit and a (restricted) consultation effort mid-2020 on the Commission’s initial thinking.

The following statements can be attributed to Ms Caroline De Cock, C4C coordinator:

“Considering the many translation errors surrounding the ‘best efforts’ concept, we welcome that this guidance sets in stone that the only accurate terminology is indeed ‘best’ as the standard for the efforts to be deployed, and mandate that ‘it should be transposed by the Member States in accordance with this guidance.”
“The final guidance could have been better, as the Commission decided to make do with a bad legislative text, and clearly gave in to the hefty lobbying by rightholders by carving out a specific regime for content ‘earmarked’ by them.”

The Commission’s adoption process for this guidance has been desperately slow. It is at least reassuring that the Commission acknowledges that platforms must meet a best effort standard in their action taking into account a need for proportionality. Considering the many translation errors surrounding the ‘best efforts’ concept, we welcome that this guidance set in stone that the only accurate terminology is indeed ‘best’ as the standard for the efforts to be deployed, and mandate that ‘it should be transposed by the Member States in accordance with this guidance and interpreted in light of the aim and the objectives of Article 17 and the text of the entire Article’.

Furthermore, the guidance mirrors to a certain extent the analysis given by the Commission’s legal services at the CJEU hearing on the Polish Article 17 case: preserving users’ rights is an obligation of result, whilst combatting copyright infringing uses of content is an obligation of means, that should never impede recklessly on the freedoms of our citizens.

But the final guidance could have been better, as the Commission decided to make do with a bad legislative text, and clearly gave in to the hefty lobbying by rightholders by carving out a specific regime for content ‘earmarked’ by them.

See COMMUNIA’s flowchart interpreting the regulatory framework flowing out of Article 17 based on the EC’s guidance (‘earmarking’ mechanism highlighted in red):

Other relevant views: