Article 17 of the EU Copyright Directive changes fundamental points of law applicable to “Online Content Sharing Service Providers” (OCSSPs). It is drafted broadly, and – to understate matters – is unclear as to how it is supposed to work in practice.

The Commission has been due to issue guidance on some of the most important factors at play for a long time, which should help with those open (or impossible) questions. The guidance has still not been published. Given that article 17 contemplates new systems and approaches that have to be adopted by platforms, timing is now critical to understand what the Commission believes what the practical meaning and implications of the Directive should be. Strictly focussing on law and procedure, let’s break it down in terms of numbers.

It’s been:

  • 2,168 days since the DSM package first announced (6 May 2015)
  • 1,671 days since the Commission’s first draft directive was published (14 Sept 2016)
  • 728 days since the Directive was finalised (15 April 2019)

It is:

  • 10 days until the AG Opinion in Poland’s challenge to Article 17 is due to be published (22 April 2021)
  • 56 days until the implementation deadline (7 June 2021)

There have been:

  • 0 official guidance documents from the Commission
  • 0 substantiated reasons as to why the Copyright Directive does not effectively mandate a general monitoring obligation or obligation to investigate facts/circumstances indicating illegality on OCSSPs
  • 0 explanations as to how the Directive is consistent with CJEU jurisprudence in Scarlet Extended and Netlog

Will the guidance provide the answers and this important additional detail? If so, when?