On 22 June 2021, the Court of Justice of the European Union (CJEU) handed down its long-awaiting judgment concerning the liability of online platform operators such as YouTube and Uploaded.
In a decision that will largely be well received by content platforms, the CJEU ruled that these intermediaries do not infringe copyright in works illegally uploaded by platform users merely by making the platforms available to users. However, they can still be directly liable for copyright infringement where they fail to take diligent steps to avoid copyright infringement on their platforms.
The issues in dispute concerned the joined cases of C-682/18 (YouTube) and C-683/18 (Cyando)[i]:
- YouTube: The first dispute involved a claim brought by music producer Frank Peterson against YouTube (and Google, as its parent company) in relation to several phonograms uploaded to YouTube back in 2008. The materials in question included tracks from the album "A Winter Symphony" by Sarah Brightman, with such songs uploaded by YouTube users without permission.
- Cyando: The second case involved publishing group Elsevier, who issued proceedings against Cyando (the company behind file sharing and hosting platform, "Uploaded"). The dispute concerned various copyright works uploaded by users of the Uploaded platform without authorisation including "Gray’s Anatomy for Students" and "Atlas of Human Anatomy".
The German Federal Court of Justice, which heard both cases, referred a number of questions to the CJEU concerning the liability of these online content-sharing platforms for copyright infringement. The key issue to be determined was whether, by making available user-uploaded content, this constituted an act of “communication to the public” under Article 3(1) of the InfoSoc Directive.[ii]
The AG’s opinion
As reported here, Advocate General (AG) Saugmandsgaard Øe delivered his opinion to the CJEU last year, advising that these platform operators should not be directly liable for illegal uploading of copyright-protected works. Part of the reasoning for this was to avoid over-removal of content and making the likes of YouTube private judges of censoring or removing online content.
Analysing the applicable EU law at the time of the activities in question, the CJEU ruled that:
- An operator of a content-sharing platform, on which users can illegally make protected content available to the public, does not make a "communication to the public" of that content, “unless it contributes, beyond merely making that platform available, to giving access to such content to the public in breach of copyright.”
- Operators may benefit from the exemption from liability under the E-commerce Directive,[iii] unless they play an active role that gives them knowledge of, or control over, the content uploaded to their platform.
As regards the circumstances in which these platform operators do in fact go beyond merely making the platform available to users, the CJEU clarified that this would include where:
- The operator has specific knowledge that protected content is available illegally on its platform and refrains from expeditiously deleting it or blocking access to it
- The operator refrains from putting in place appropriate technological measures that would be expected from a reasonably diligent operator, despite the fact that it knows (or ought to know, in a general sense) that users are making protected content available to the public illegally via its platform
- The operator participates in selecting protected content illegally communicated to the public, provides tools specifically intended for the illegal sharing of such content, or knowingly promotes such sharing. This may be demonstrated where that operator has adopted a financial model that encourages users to communicate protected content to the public
On the face of it, content sharing platforms such as YouTube and Uploaded will welcome this decision, with such platforms only facing direct liability for infringing user-uploads where they play an active role in the distribution of illegal content. It does nevertheless highlight the need for platform operators to take diligent steps, such as:
- Implementing reasonable technological measures to prevent copyright infringements taking place on their sites (as many platforms such as YouTube do already)
- Ensuring infringing content can be taken down quickly via reporting processes
- Putting in place appropriate terms of service to prohibit the use of infringing content
- Utilising verification and recognition software
The practical impact of this decision going forward is, however, likely to be more limited across the EU. The law applied by the CJEU only considered the current position at the time of the YouTube/Cyando proceedings and did not consider the future regime under the Digital Copyright Directive, which EU member states were required to implement by 7 June 2021.[iv] Article 17 of this new Directive requires certain online content-sharing service providers to use best efforts get authorisation from right-holders in respect of user-uploaded content and to remove content for which authorisation is refused.
Nevertheless, not all platform operators will be subject to this new regime, so the CJEU’s analysis of when operators will be “contributing” to the communication of infringing content will still be relevant in determining future liability. It is also important to note that the UK did not implement the new Directive. So, whilst it will not be bound by this CJEU ruling (coming after the end of the Brexit transition period), the UK courts are still likely to have regard to it when assessing the future liability of platform operators.
[i] Peterson v Google LLC and others and Elsevier Inc v Cyando AG (Joined Cases C‑682/18 and C‑683/18)
[ii] Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society
[iii] Article 14(1) of Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market
[iv] Article 17 of Directive (EU) 2019/790 of the European Parliament and of the Council of 17 April 2019 on copyright and related rights in the Digital Single Market and amending Directives 96/9/EC and 2001/29 (OJ 2019 L 130, p. 92)