THE COURT OF JUSTICE OF THE EUROPEAN UNION’S DECISION IN POLAND V. EUROPEAN PARLIAMENT – THE LAST CHALLENGE DISMISSED, WHO WILL TAKE THE NEXT STEP FORWARD?

Abstract

This article follows the Court of Justice of the European Union’s decision in Poland v. European Parliament and Council of the European Union (C-401/19), the ‘last-ditch’ effort made by the Republic of Poland to annul (in part, at least) art. 17 of the Digital Single Market Directive, which famously captured both the legislative and public debate by proposing that online content sharing service providers be, where they have not secured a license from the relevant copyright and/or related rights holders, directly liable for the communication to the public of works or protected subject matter not by themselves but by their users. This very important shift in the liability regime for copyright infringement has naturally attracted a lot of criticism, with some of the critics’ arguments being used by Poland in their briefing the present case. In response, Attorney General Øe and then the Grand Chamber of the Court, in following his findings, allow the provision to stand but, by highlighting its qualification as a serious interference with the right to freedom of expression and information, subject it to a series of very stringent conditions, which would seem to make it, at least in light of current technology, only exceptionally applicable.

Keywords

• art. 17 of the digital single market directive
• online content sharing service providers
• liability regime for copyright infringement
• the right to freedom of expression and information
• the exclusive right of communication to the public