As in all good legal conundrums, the answer is ‘well that depends’. If you are Advocate General Saugmandsgaard Øe in the recent joined cases Frank Peterson v Google LLC, YouTube LLC and others (C-682/18) and Elsevier Inc. v Cyando AG (C-683/18), then no. His view was online platforms such as YouTube should not be directly liable for content uploaded by users which infringes another’s copyright. However, if you are the European Parliament and Council overseeing the implementation of the controversial new Copyright Directive (2019/790), then yes, such platforms should be so liable.
YouTube and Uploaded Cases
In 2018, two actions were brought in Germany against operators of online platforms – YouTube (owned by Google) and Uploaded (owned by Cyando AG). The claimants were a musical producer (Frank Peterson) and a publisher (Elsevier) whose works had been uploaded onto the respective platforms without their authorisation. They sought injunctions and damages for copyright infringement.
The German court referred a number of questions for a preliminary ruling to the Court of Justice in 2018. These centre on the liability of operators of platforms on which copyrighted content is uploaded without the consent of the rightholders.
1. No direct liability for platform operators
The AG recommended that operators (such as YouTube) should not be directly liable if users of their platforms upload content which infringes works protected by copyright. The rationale is that only the users themselves make a “communication to the public” that would infringe the rightholder’s copyright (under Directive 2001/29). By contrast, platform operators are merely intermediaries. They do not select or determine which content is published, and so should avoid direct liability.
2. Knowledge or awareness of operators is key
However, if the platform operator has specific knowledge of unlawfulness, understandably the AG argues they should be held liable. This could mean secondary liability (under the national law of the relevant Member State) for facilitating illegal communications to the public.
The AG nevertheless cautions against the risk of platform operators becoming judges of online legality and consequent “over-removal” of legal content following requests by users.
3. Similar treatment of the file storage exemption
There is also an exemption from liability in Directive 2000/31 for an “information society service” which stores files at the request of users. The AG suggests that platform operators should be able to benefit from this exemption, unless they know or are aware that the information or activities are illegal and they do not act expeditiously to remove or disable access to the information.
4. Injunctions should be available regardless of liability
Despite this Opinion seeming to offer little comfort for rightholders, the AG does suggest that injunctions should be available against platform operators (for example requiring they remove content). The rightholder would not need to show improper conduct by the intermediary, but simply establish that their rights are infringed by the relevant content on the platform.
The new Copyright Directive
It is important to note that these cases were decided under the relevant directives of 2000, 2001 and 2004. However, the new Copyright Directive (see further our article and blog) bolsters protection for rightholders. Among other things, it introduces a new liability regime for works illegally uploaded by the users of online platforms. Operators must obtain authorisation from the rightholders (for example under licence) for works uploaded by users, and cannot rely on simply being an intermediary / host.
As the AG noted, this new regime represents "a political choice by the EU legislature to support the creative industries" and demands "more proactive involvement from intermediaries in order to prevent a proliferation of illegal online content." EU Member States must transpose this Directive into national law by 7 June 2021. The latest position of the UK is that “the United Kingdom will not be required to implement the Directive, and the Government has no plans to do so.”
This remains a dynamic area of copyright law, and so we await the CJEU’s decision (and whether it confirms the AG’s Opinion), as well as the implementation of the new EU Copyright Directive.
"maximum protection of certain forms of intellectual creativity is to the detriment of other forms of creativity which are also positive for society"