GESAC reacts to Article 17 Guidelines

Commission Guidance on Article 17 creates
more uncertainty than clarity 

Brussels, Monday 7 June 2021 – The Commission has issued its Guidance on the implementation of Article 17 of the Copyright in the Digital Single Market Directive (CDSM). The Guidance, which is not legally binding, is supposed to facilitate cooperation between online content sharing service providers (OCSSPs) and rightsholders, while also helping Member States’ transposition efforts to address certain issues of practice in line with the word and spirit of Article 17 of the CDSM.

Article 17 is intended to put an end to the freeriding and parasitic behaviour of tech giants that circumvent EU frameworks. It clarifies their liability for making authors’ right/copyright protected works available to the public on their services and the need to remunerate creators fairly. The EU institutions and creator community welcomed this long-sought EU legislation as a great achievement against the intimidation, pressure and misinformation campaigns ran by the concerned tech giants during the legislative process.

The adoption of the guidance comes just in time before the deadline for the transposition of the CDSM, on 7 June. A significant number of Member States have already transposed this provision into national law or are at an advanced stage in the process. GESAC therefore considers that keeping the Directive’s text as the main guiding document is the safest and most appropriate approach for transposition.

GESAC notes that although there are some useful clarifications on some important aspects of the implementation in line with the objective of the Directive, the Guidance risks creating uncertainty and ambiguity by going beyond the scope of the Directive, which makes the exercise an overall missed opportunity. 

The main purpose of Article 17 is to foster licensing, so as to allow for wide access to protected works while ensuring fair remuneration for the creators of those works. Authors’ societies (Collective Management Organisations – CMOs) that GESAC represents, deliver licences for a wide repertoire, and as such are key players in the market and for consumers. The Guidance usefully makes it clear that seeking a licence from CMOs is a ‘basic’ requirement for all OCSSPs under their licensing obligation, and refusing such collective licences would be an infringement leading to their liability.

But the Guidance deviates from the language of the Directive and creates new provisions in several instances, leading to uncertainty and possible weakening of the rights of creators in a very unhelpful manner.

The Guidance text suggests an exception for reproduction right for the OCSSPs making protected works available, whereas this is mentioned nowhere in the Directive. If anything, Article 17 would require licensing all relevant rights fully, as the OCSSPs can no longer benefit from the safe harbour regime of the E-Commerce Directive.

GESAC has always advocated for pragmatic solutions to address legitimate interests of consumers, while keeping the liability of the OCSSPs intact. We unfortunately note that by making elaborations going beyond Article 17, the Guidance risks being a pretext for further circumvention attempts of the concerned platforms that seek every way possible to avoid their liability.

GESAC therefore calls for a cautious approach from Member States in this respect and warns against possible misinterpretations leading to unwarranted new liability safe harbours, that would be totally against the core objective of Article 17.

GESAC hopes that the Commission will act as a true guarantor of the proper implementation of EU legislation and that Member States will remain faithful to the word and spirit of Article 17, in their transposition process, and not allow the bypassing of democratically adopted rules by the concerned platforms that have repeatedly shown their unwillingness to comply with EU law.