7 month 15 day, Henrik, an examiner at the European Court of Justice．Saugmandsgaard (Henrik Saugmandsgaard Øe) A legal opinion was issued, Dismissing the Polish vs "Digital Single Market Copyright Directive" The first 17 The action brought by the article, But the presiding officer had some caveat about how to align the use of automatic content recognition tools with the rights of speech free radicals.

Although the opinion of the presiding Officer acting as legal adviser to the European Court of Justice is not legally binding, But this usually represents the final ruling of the European Court of Justice. Elenora is the director of Stockholm University's Law School of Intellectual Property and Marketing．Rosati (Eleonora Rosati) Point out: "Decision of the court 17 Strip and "Eu Charter of Fundamental Rights" The consistent substantive results are not surprising at all.

In fact, A year ago, the presiding officer YouTube The case is very clear. " The first 17 Article provision, If a user uploads content that infringes copyright, The content sharing service provider shall bear the responsibility. But if the service provider takes measures to prevent illegal uploads (The vast majority of cases are in the form of content automatic identification tools) , Then it can be exempted from liability. Polish control 17 He took his case to the European Court of Justice, Said it should be repealed, Because it violates freedom of speech.

Freedom of speech regulation 17 The article is the target of harsh criticism from campaign groups and ngos. They say online platforms even block legal content to avoid legal disputes. The examiner recognizes automatic tools, etc "overmasking" Risk of, But he thinks the legal safeguards provided by the directive are sufficient to minimise this risk. The adjutant asked 2 An important caveat. First of all, Content sharing platforms should respect exceptions to copyright restrictions, Include references to cultural products, criticize, Comment or imitate. Preventive masking tools should respect these exceptions, Instead of correcting users after they complain.

secondly, The judge pointed out, Private providers cannot be the judge of the legality of online content. Therefore, They can only block content that is clearly illegal, No precautions should be taken against ambiguous situations. Julia, a former EU lawmaker．Leda (Julia Reda) representation: "The judge's view was very clear. In operation control 17 Bar time, Member States are obliged to limit the use of upload filters to content that is clearly illegal.

In assessing the legality of user-uploaded content, Commercial platforms must not play the role of courts. " If the right holder considers the content to be illegally uploaded, It has the responsibility to notify the platform or relevant departments. In Rosati's opinion, The judges' opinion recognises that EU law should strike a balance between copyright and freedom of expression, Simultaneous rejection control 17 The article shall have retroactive effect. Rosati said: "Given that the European Court of Justice last month decided YouTube Decision of case, The court will at least rule in the No 17 Strip and "Eu Charter of Fundamental Rights" The core issues of compatibility comply with the comments of the examiner. " The copyright directive needs to be transposed into national law before it can come into force.

Although the deadline for the conversion is 2021 years 6 month 7 day, But only a few member states have translated the directive into national law. One of the main reasons for the delay is that the European Commission only issued a working day before the deadline on No 17 Guide to strips. The guide to "Differentiation mechanism" (earmarking mechanism) Have made provisions, Such automatic content identification tools are designed to prevent illegal uploads of time-sensitive content. For the initiative "Creative copyright" (Copyright for Creativity) Caroline, coordinator of．De Kock (Caroline De Cock) Speak of, The judge's opinion "overthrow" The European Commission's rules on differentiation. Many objections 17 The article also pointed out that, The few EU countries that have transposed the directive into national law do not ensure that the warnings highlighted by the Ombudsman are fulfilled.

Leda added: "Only Germany's conversion pairs 'Constructive authorization' Exceptions to automatic masking are provided. In many other countries, Domestic implementation is a clear violation of freedom of expression and information. " Diego, head of cyber policy at the European Digital Rights Initiative．Narancho (Diego Naranjo) Also points out that, Member States should take care to protect freedom of expression when incorporating the directive into their legal framework.

Said Narancho: "Recent cases show that, Abuse of copyright notices has become the fastest way to block and remove content, Leading to dissidents, Journalists and human rights defenders have been silent. "

(Compiled from www. euractiv. com)

Reprinted from China Intellectual Property Network   translation: Rason group　proofread: Wang Dan

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