On Monday, 15 April 2019, the Council of the European Union gave the green light to the new copyright directive, which aimed to bring the EU's regime on copyright up to speed with modern technologies. Just two months later, Poland has complained to the Court of Justice of the European Union - citing the new regime's alleged potential for preventative censorship.
According to the Commission, the reforms introduced by the new copyright rules will protect European authors, performers and creators, preventing their work from being re-used without the payment of fair remuneration. Indeed, along with reforms like GDPR and the proposed E-Privacy Regulation, these new copyright rules are simply the latest in a series of EU-led attempts to create a harmonised 'Digital Single Market' in Europe - with EC President Jean-Claude Juncker remarking: 'The copyright reform is the missing piece of the puzzle.'
However, Mr Juncker's positive assessment of the new regime is not one that is unanimously shared across all of the Union's constituent states, with Poland expressing reservations over the so-called 'filtering processes' which will have to be employed by internet service providers to ensure that copyrighted works are not being used against the wishes of creators. Speaking to a national broadcaster, Poland's Deputy Foreign Minister, Mr Konrad Szymanski explained their rationale for lodging the complaint:
'This system may result in adopting regulations that are analogous to preventative censorship, which is forbidden not only in the Polish constitution but also in the EU treaties.'
In any event, the challenge is now before the Court of Justice of the European Union, whereby Poland will be seeking to invoke Article 263 TFEU in an attempt to have the copyright regime annulled. The procedure laid out under Art 263 allows the ECJ to review 'the legality of legislative acts... intended to produce legal effects vis-á-vis third parties'.
As a Member State, Poland is would be entitled to 'privileged applicant' status under Art 263(1) and as such, they enjoy what Chalmers et al have referred to as 'general, unrestrained policing powers against the EU institutions'. Other non-privileged applicants would have to prove that the matter is of 'direct concern' to their interests.
The sixth paragraph of Art 263 provides that an action for annulment must be brought within two months of the publication of the measure - which is usually done through the Official Journal of the EU. Since this challenge appears to have been brought within the two month period, there should at least be no procedural barriers to Poland's action.
Note: This is intended to be a fair and accurate report of an ongoing legal challenge and is not to be construed as legal advice. Any errors should be notified to the editor and will be dealt with accordingly.