More than words: The legal translations of Article 17 DCDSM

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Only 10 out of the 24 official EU language translations correctly transpose Article 17 of the Directive (EU) 2019/790 on copyright and related rights in the Digital Single Market (DCDSM). These apparent errors mandate urgent action from the European Commission and the EU Member States.

This legislation sparked some heated discussions and even protests across Europe. This contention focused on the need to rely on automated content recognition technologies possibly stemming from Article 17 and the potential effect of such an approach for fundamental rights, the risk of censorship, and the possible ensuing limitations on freedom of speech and freedom of information. Article 17 notably sets out a liability regime for platforms hosting user generated content (UGC) and meeting a certain number of criteria.

Professors Senftleben and Angelopoulos explain the rationale behind Article 17 as follows:

‘The underlying strategy seems to have been the following: deprived of the safe harbour for hosting and exposed to direct liability for infringing user uploads, OCSSPs would have to embark on licensing and filtering of content posted by users. In the face of the erosion of the legal certainty resulting from the traditional liability shield, a platform provider seeking to avoid liability risks would enter into agreements with copyright owners.’

Even now, it remains controversial as Member States are transposing the provision into their national legislation, based on the translations into the 24 official EU languages. Here’s the catch: Article 17 contains two words, namely ‘best efforts,’ which qualify the extent of the obligations that stem from this provision. Only 10 out of the 24 official EU language translations correctly transpose the original meaning of the ‘best efforts’ concept as intended.

Importance of words’ original meaning

One must safeguard the original expression’s intentio to guarantee the most accurate translation. This specific case implies assessing the context of the framing of ‘best efforts’ in Article 17 and weighing the possible implications of different translation approaches.

Article 17(4) provides the following mitigation mechanism in case platforms cannot reach a licensing agreement [our emphasis added]:

‘If no authorisation is granted, online content-sharing service providers shall be liable for unauthorised acts of communication to the public, including making available to the public, of copyright-protected works and other subject matter, unless the service providers demonstrate that they have:

(a) made best efforts to obtain an authorisation, and

(b) made, in accordance with high industry standards of professional diligence, best efforts to ensure the unavailability of specific works and other subject matter for which the rightholders have provided the service providers with the relevant and necessary information; and in any event

(c) acted expeditiously, upon receiving a sufficiently substantiated notice from the rightholders, to disable access to, or to remove from their websites, the notified works or other subject matter, and made best efforts to prevent their future uploads in accordance with point (b).’

Article 17(4) provides for an ‘obligation of means’: this implies that the platforms have no absolute obligation to ensure a specific outcome. This can be derived from the fact that it:

1. includes references to ‘proportionality’ (§5) and ‘cooperation’ (§§7-8 & §10); and,

2. is limited by an ‘obligation of result’, which establishes a higher duty by requiring the actual achievement of a specifc outcome, namely to refrain from hindering the limitations and exceptions of users (§7).

The European Commission’s legal services, whose views were supported by the legal services of the Council, recently clarified the latter during a hearing of the Court of Justice of the European Union (Case C-401/19). These intertwined concepts set the context and boundaries for the interpretative framework defining the scope and breadth of ‘best efforts,’ highlighting why Member States need to keep Article 17(4)’s ‘best efforts’ standard at a level of ‘reasonableness.’ This plays a crucial factor in ensuring that national transpositions take due account of the (1) need to ensure proportionality and (2) cooperation with rightholders.

Words have implications

If the ‘best efforts’ concept is not correctly translated, taking into account the interpretative framework set out above, users of these platforms are likely to be negatively affected. Excessive thresholds (e.g. ‘all,’ ‘maximum,’ ‘greatest’) would impact users’ fundamental rights and jeopardize platforms’ functioning, especially hurting smaller (EU) ones, because it leaves them with no other option than to:

○ block content under the obligation of means set out under Article 17(4); and,

○ breach Article 17(7)’s obligation of result to not impede users exceptions and limitations.

Some examples of such excessive threshold in the Article 17 translations in the EU Official Journal notably are: ‘all that is possible’ (Croatian: ‘sve u svojoj moći’); ‘every possible effort’ (Greek: ‘κάθε δυνατή προσπάθεια’); the greatest possible efforts (Estonian: ‘suurimaid võimalikke pingutusi’); ‘everything possible’ (Latvian: ‘visu iespējamo’); ‘the greatest efforts’ (Spanish: ‘los mayores esfuerzos’); and ‘maximum efforts’ (Italian: ‘i massimi sforzi’).

Remedying translation errors

At any rate, policymakers must avoid using expressions going beyond the scope of the original text, by imposing an excessive threshold. My research published on SSRN identifies three elementary strategies to remedy this. Otherwise, this would lead to the ultimate irony, namely fragmentation resulting from a Single Market Directive.

These apparent translation errors identified can be fixed at two levels in order to ensure that the contextual framework limiting the ‘best efforts’ concept under Article 17 is taken into account, namely:

• At the Commission level: by issuing corrigenda for incorrect language versions.

• At the Member State level: by implementing ‘best efforts’ correctly.

By Dr. Aline Larroyed