Will article 17 of the Directive on Copyright in the Digital Single Market alter the fair balance between copyright and the freedom of expression and information?

Abstract

In 2019 the controversial article 17 of the Directive (2019/790) on Copyright in the Digital Single Market was passed in the EU Parliament. The article sparked some of the biggest protests against an EU legislative reform ever. Critics argued it would result in the freedom of expression and information online becoming de-prioritized in relation to copyright in the online sphere since “upload filters” would have to be introduced in order to comply with the article. This thesis aims to investigate whether article 17 is likely to restrict these fundamental rights or if those fears are exaggerated. The CJEU has confirmed the legality of article 17 on one key condition, that the implementation of it does not disrupt the fair balance between copyright and other freedoms. Due to the CJEU’s focus on the fair balance as a key argument the thesis also starts with investigating, by using the method of legal dogmatics, how the fair balance doctrine has been applied by the CJEU in relevant cases during the last 15 years. This is followed by investigating the relevancy of key arguments that opponents and advocates have used in the debate regarding article 17 and how they affect different copyright stakeholders. Lastly, implementations in three different EU member states (Spain, Germany and Sweden) are analysed. They are found to be so different that they will likely result in vastly different results. However, after comparing the projected outcomes of the different implementations with the CJEU´s interpretation of the fair balance doctrine, it is concluded that the German implementation is most likely to be accepted by the CJEU and used as a benchmark for other implementations. Since the German implementation is also the least intruding on the freedom of expression and information it is unlikely that article 17 will result in such restrictions on these rights as critics feared. The thesis therefore concludes that article 17 will not revolutionise the balance between copyright and the freedom of information and expression. Instead, it should be seen as a necessary adjustment of copyright law, although it has to be implemented carefully so that a fair balance can be struck between copyright and other fundamental freedoms.