On the 16 July 2020, Advocate General Saugmandsgaard Øe (AG) advised the Court of Justice of the European Union (CJEU) that online platform operators such as YouTube and Cyando (Platform Operators) are not directly liable for illegal uploading of protected works by users of those platforms under the current EU copyright framework.
Background
The German Federal Court of Justice requested a preliminary ruling from the CJEU in relation to two disputes:
- Frank Peterson v Google LLC, YouTube LLC and others (C-682/18)
In this case, Frank Peterson, a music producer, sued YouTube and its parent company because several phonograms, in which claimed to hold rights, had been uploaded to the YouTube platform by its users without his permission.
- Elsevier Inc v Cyando AG (C-683/18)
Similarly, Elsevier Inc, a publishing group, sued Cyando AG (which operates the file sharing platform, Uploaded) because several copyright works had appeared on Uploaded, without authorisation.
The German court referred a number of questions to the CJEU, which focused on the liability of online content-sharing platforms for copyright infringement where copyrighted content is uploaded to the platform without the approval of right holders.
The Opinion
The AG advised the CJEU that Platform Operators should not be directly liable for an infringement of the exclusive right of authors to communicate their work to the public if users of the platform illegally upload protected works, on the basis that:
- the Platform Operators role is, in principle, that of an intermediary providing physical facilities to carry out communications to the public, they do not carry out the act of communication to the public themselves; and
- the actual process of uploading files to a platform, once initiated, is automatic. The Platform Operator does not select or determine in any other way the content which is actually published.
This is not to say that there are no scenarios where a Platform Operator could be directly liable, the AG’s view, however, is that liability for unauthorised acts of communication to the public would arise in two scenarios – when the platform focuses on the piracy of copyrighted works or when the content on the platform is presented as the Platform Operator’s own content.
The AG also contended that the EU legislation under scrutiny did not intend to govern what is considered secondary liability. The AG argues that this form of liability, which falls on persons who facilitate third parties in carrying out illegal communications to the public, generally requires knowledge of unlawfulness and comes under the national law of member states. This is a contrasting view to the approach taken by the CJEU in previous cases.
The AG further noted that Platform Operators should, in principle, be able to rely on the exemption to liability in Directive 2000/31 for files which are stored at the request of their users. This exemption allows a provider of an information society service, which stores information provided by users of the service, to escape liability for the information stored unless, after obtaining knowledge that the information is illegal, it has not expeditiously removed or disabled access to that information.
Conclusion
This will certainly be an interesting case to watch as the issues considered by the AG remain contentious. There may yet be a further twist in the story as we await the verdict from the CJEU.
For more information on the topic, please contact a member of our Intellectual Property Team.
