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Tugce Kucukali is an IPilogue Writer and incoming LL.M. Candidate at University of British Columbia.

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The European Union (EU) Court of Justice Advocate General, Saugmandsgaard ØE, the long-awaited opinion on the action brought by the Republic of Poland against the contentious Article 17 of . The opinion examines the background of the Directive, the contested provisions, their interference with the right to freedom of expression, and the compatibility of this limitation with

The Advocate General explains the ratio legis of the Directive by referencing the value gap between the value that an online content-sharing service provider acquires from the copyrighted subjects and the value that it distributes to the rights-holders. The amount distributed is quite insignificant compared to the amount earned. The Directive also addresses questions such as whether the providers should themselves acquire rights on a work by licensing and remuneration and whether they could benefit from copyright exemptions, such as caricature, parody, and pastiche. The Directive attempts to achieve an equal footing on which providers and rights-holders could negotiate and eliminate this gap.

Under the Directive, the strict liability of the content-sharing service providers, who communicate the copyrighted works to the public, would require them to change their business model. As per Article 17, the providers shall not solely perform the “notice and takedown” procedure but “notice and stay down,” making the best efforts to prevent future uploads. This provision imposes an obligation of diligence to the providers since removed content is often re-uploaded. Rather than removal of such content ex post, ex ante prevention is set forth.

By this obligation, the providers employ diverse software tools such as hashing, watermarking, or fingerprinting. The Directive does not require the providers to adopt specific measures. Rather than a direct obligation, their use is indirectly imposed as an exemption from liability. The Advocate General emphasizes that this obligation is stipulated for operators that manage a significant, or even huge, volume of content. In each case, the measure is determined by considering the type, audience and size of the service, type of works, availability of suitable and effective means, and proportionate cost.��

The Advocate General agrees that the provision interferes with freedom of expression since users are not completely free to upload any content. However, the content is monitored not to suppress freedom of expression, but to prevent copyright infringement. Even though the providers are currently able to filter and block any content according to their self-regulations, this does not constitute interference by a public authority, as is the case of Article 17.

Regarding the compatibility of this limitation with the Charter, the Advocate General investigated whether the limitation is prescribed by law, respects freedom of expression, and adheres to the principle of proportionality. Since the Advocate General regards this monitoring obligation as a specific and not a general obligation, prohibited by Article 15 of , the limitation does not infringe the “essence of the right”, its untouchable core which must remain free from interference. According to the Advocate General, the EU legislature’s safeguards minimize the freedom of expression risks. This respects the proportionality requirement while considering the value gap created, the difficulties of the notice and takedown system for right holders, and the fact that the obligation concerns a specific group of providers. Even though the Advocate General’s opinion was expected to sway in this direction, the instructions made towards the member states are crucial for the transposition of the Directive into their national laws, eventually leading to the smooth application of the Directive across the EU.

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In doing so,��Adv.-Gen. Bot has reaffirmed Justice Arnold’s preliminary ruling, with respect to the prevention of a monopoly on source and object codes of computer programs by the copyright owner. The opinion refers to the interplay between the two EU directives, their transposition into UK national law through to the , and the general adherence of both of the above to of the . As per the facts of the case, the plaintiffs, SAS Institute developed the ‘SAS System,’ a software program that ran on its own programming language, making it impossible for existing clients to run their application programs in any other form without “considerable investment.” To continue using the SAS components required clients to obtain licenses from the SAS Institute. The respondent, WPL Programming had developed software that allowed execution in the SAS programming language, and, according to , also allowed “access and process data stored in SAS's proprietary format, eliminating the need to buy licenses from SAS if users want to develop new functions to analyze their data.”

Even as WPL Programming admitted its intention to follow the functionality of the plaintiff’s program as closely as possible, it denied SAS Institute’s claim of infringement of the overall computer program itself, since it had no access to the latter’s code when designing its own code. Further, previous rulings in the UK courts had also shown that studying a program’s code to determine how it works (decompilation) was not deemed to be an infringement of the owner’s copyright.

While��Adv.-Gen. Bot was clear that the protection of computer programs was defined as extending to expression, and not “ideas, procedures, methods of operation or mathematical concepts,” he also mentioned that the legal definition of ‘expression’ with respect to functionality was left open to interpretation, in order to accommodate future technologies within the framework of Directive 91/250. The��Advocate-General then deemed that functionalities were ‘dictated by a specific and limited purpose,’ finding them closer to an ideas rather than expression, and hence, not copyrightable. By equating a computer program to a literary work, the opinion also stated that Article 1(3) of the Directive cited originality, and the time, effort and level of skill and judgment invested in the expression as the only criteria to determine copyrightability.

When considering whether the programming language was protectable under Directive 91/250,��Adv.-Gen. Bot again drew a parallel between computer programs and literary works, stating that the language the former was written in merely permitted the actual expression, and not being part of the latter, was not copyrightable. With respect to interfaces however, the��Advocate-General opined that 91/250 did not preclude these from copyrightability, provided that they formed a substantial part of the expression of the computer program itself. Also, Article 6(1) of the same directive was deemed to be indicative of decompilation of the program by a licensee as being permissible, if it was for the purpose of interoperability. Additional proposed limits included the licensee having to demonstrate “the form of the code for the purposes of interoperability with the elements of his own program,” and ensuring that the original code was not merely recopied. ��Finally,��Adv.-Gen. Bot referred to Article 2(a) of Directive 2001/29/EC to recommend that certain elements of a computer program could constitute infringement if reproduced in manuals, as long as they were found to be “expressions of the author’s own intellectual creation.”

Though non-binding, the opinion is an influential intermediary move in determining the nature and scope of the copyrightability of computer programs. The ECJ is due to consider the case in 2012, and in the meantime, scholars have already deemed Adv.-Gen. Bot's opinion as a step in the right direction, emphasizing that to ensure fair monopolization of software programs.

Mekhala Chaubal is a JD candidate at Osgoode Hall Law School.

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