On 16 October, POLITICO leaked the written response [PDF] of the Council Legal Service to the multiple questions as regards the legality of the proposed Article 13 and its Recitals of the Copyright in the Digital Single Market Directive raised by on the one hand 6 Member States and on the other hand Germany.

The 20-page document is an interesting mixture of legal jargon, gentle rubber stamping of the European Commission’s proposal, statements about how the Court of Justice of the European Union would react (not sure that’s in the remit of the Council Legal Service, but hey) and not so subtle slapping of the European Commission for doing a botched job. It also explicitly confirms that the questions raised by the Member States in the Council are legitimate and in some cases remain without answer when looking at the text on the table.

A couple of elements are worth highlighting amidst this panaché of impressions.

Article 13 cannot impose a censorship filter

The Council Legal Service expresses no doubt on this matter: a censorship filter would be illegal at various levels and it can therefore not be the case that Article 13 could be interpreted as requesting such a measure. More specifically, it could not require any type of measure that would be ‘overly “costly” or “complicated” for businesses’ (par. 12).

The Legal Service consider also that costs should be partially carried by rightholders to avoid overly burdening the platforms, which could lead to some funny discussions in the future and is certainly likely, once more, to be to the detriment of start-ups vs larger players.

The illegality of such a censorship filter has been vociferously pointed out earlier today by 57 NGOs representing human rights and media freedom in an open letter to the European Commission President, the European Parliament (EP) and the Council asking them to delete the censorship filter proposal (Article 13).

The current draft proposed by the European Commission does not meet the requirement of legal certainty

In par. 25, ‘the [Council Legal Service] recalls that, in accordance with the principle of legal certainty, the rules set out in an act must “be clear and precise and predictable in their effect, so that interested parties can ascertain their position in situations and legal relationships governed by EU law(…)”‘.

The Council Legal Service considers the relation between the Copyright proposal and the existing e-commerce Directive is not clearly stated in the text, and basically lashes out at the Commission for this ‘omission’ (see par. 28).

The Legal Service indeed states that ‘recital 38 highlights all the above mentioned uncertain parameters without, at the same time, providing any explanation as to the content of the enacting terms of the proposed Article 13, or any clarity on its relationship with the e-commerce Directive and [Communication to the Public], or as to how that Article should be understood by the Member States and the stakeholders concerned, or even interpreted by the Court.’

And it concludes, without appeal:

On the contrary, the confusing terms in which that recital is drafted raise various legitimate questions to which, regrettably, no clear answers are given.’

Conclusion: the Council Legal Service are now also calling the Commission’s bluff

Reading through the Legal Service’s double speak, three clear messages and one omission emerge:

1. What a botched drafting job this was! Or as the Council Legal Services diplomatically put it ‘in accordance with the principle of legal certainty, the rules set out in an act must ‘be clear and precise and predictable in their effect, so that interested parties can ascertain their position in situations and legal relationships governed by EU law’’ (par.25)… and guess: what: what’s on the table doesn’t cut it.
2. Whatever you think Article 13 is, it cannot be a censorship filter and this should be clear to anyone reading it or having to interpret it, as a censorship filter would be illegal.
3. The relationship between the Copyright proposal and the e-commerce Directive must be clearly stated. In other words, if the claims of the Commission that this proposal has no impact on the e-commerce Directive where true (and one would legitimately expect this from the EU’s legislator), than it needs to state it in no uncertain terms in its proposal.
4. Finally, it should be noted that one explicit question from the German Government remains unanswered, namely their concerns on the impact of Article 13 for platforms such as academic repositories, storing researchers own works, or those where public-domain works are stored on. Not exactly a small issue, so one regrets it was not properly addressed.

And at this stage, ‘regrettably no clear answers are given’ … so get on with it!
 

What others are saying

• EDRi – EU Council legal services unclear about censorship filters