European court renders judgment in Polish challenge to Art 17
Summary
In this blog post, we offer an overview of Article 17, briefly analyze the CJEU judgment, and provide general comments. It imposes a monitoring obligation, which many have argued translates in practice as OCSSPs using “upload filters” to moderate content so as to avoid copyright infringement. Upload filters are highly problematic as they generally have a chilling effect on platform users and profoundly undermine their fundamental freedom to share. Those that have, have taken divergent approaches, in part a result of the belated (June 2021) European Commission’s implementation guidance, based on a stakeholder dialogue. It will also likely influence the course of the Digital Services Act (DSA) implementation, where intellectual property rights enforcement will also need to be balanced with fundamental freedoms, as noted by the IPKat.
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