Poland’s legal challenge against the EU Copyright Directive may not be backed by other member states that are opposed to the directive, according to lawyers, who describe the decision to take legal action as unexpected and surprising.
Last month Poland lodged the first official complaint against the directive, on the grounds that it could result in censorship, with the Court of Justice of the EU (CJEU) on May 24.
Each EU nation is able to add their name to the case and present their views without lodging their own separate complaint.
However, despite five other countries opposing the directive when it was approved by member states last month, there are “no signs so far” that they or others will add their name to the complaint, says Piotr Dynowski, head of the IP practice at Bird & Bird’s Warsaw office.
He predicts that most of the countries that voted against the directive – Italy, Sweden, Luxembourg, Netherlands and Finland – may not feel comfortable joining forces with Poland as it is currently subject to two unrelated pending proceedings by the European Commission for breaching the rule of law in relation to changes to its judicial system.
Agnieszka Mencel, head of the IP practice at Linklaters’ Warsaw office, says she has not observed any wider opposition to the EU’s directive.
“We are not aware of any other countries following Poland’s precedent in that regard,” she adds.
Lack of clarity
Lawyers also point out that the scope of the complaint has not been made public, but it specifically challenges Article 17 (formerly Article 13) of the directive, which requires platforms to be responsible for monitoring and taking down unauthorised content.
According to Mencel, Poland’s Ministry of Foreign Affairs claimed that the CJEU’s internal court procedures have prevented it from publishing the full scope of the complaint.
However, she believes that the complaint emphasises the alleged risks associated with introducing a mechanism for pre-emptive screening of content.
“Supposedly, the government stated that such a broad obligation is in fact a specific form of censorship, understood as a deprivation of basic human rights to free speech,” Mencel says, adding that the government instead favours a more advanced method of the notice and take-down procedure.
A spokesperson for the foreign ministry says that Article 17 could lead to censorship. The spokesperson added: "Poland does not question the need to protect copyright. It is concerned only about those provisions that pose a threat to internet freedom and are not justified by the real need to protect copyright."
Dynowski says Poland’s opposition and subsequent complaint have come as a surprise because the country’s ruling Law and Justice Party has previously been in support of “tightening control of the media”.
He adds: “The collecting societies representing rights holders in Poland are very strong and influential, in particular in the area of copyrights regulation. Taking into account a lot of lobbying for adoption of the new Copyright Directive, in particular from the press publishers' industry in Poland, the outcome is quite unexpected.”
He adds that with a government broadly in favour of measures aimed at increasing the surveillance powers of various state agencies, a complaint in defence of freedom of speech is “quite surprising, even if some of the provisions of the new EU Copyright Directive can be considered controversial”.
Rather than being a move instigated by governmental policy, it could have been sparked by fears of a citizen backlash, Mencel suggests.
Referencing the thousands of Polish citizens who protested against the signing of the Anti-Counterfeiting Trade Agreement in 2012, she says any connotation with “limiting internet freedom is often met with high objection by Polish citizens.”
Member states have two years to write the directive into their national legislation. In March’s vote in the European Parliament, lawmakers voted by 348 to 274 in favour.
The European Commission declined to comment further.
