Should online platforms like YouTube and Uploaded be liable for copyright infringing content posted by their users? This was the critical question for the CJEU in Peterson v Google LLC and Elsevier Inc v Cyando AG and one which had vexed copyright lawyers for many years. First the AG and now the CJEU have answered 'no': such platforms would not be liable for content uploaded by users which infringes another’s copyright (see our post on the AG decision here).
For those new to these proceedings, musical producer (Frank Peterson) and book publisher (Elsevier) brought actions in Germany against YouTube (a video sharing platform owned by Google) and Uploaded (a file hosting and sharing platform owned by Cyando AG). They claimed that their works were uploaded onto the respective platforms without their authorisation and sought injunctions and damages for copyright infringement.
The CJEU was asked to consider three key issues.
Q1: Are online platform operators liable for copyright-infringing content uploaded by their users?
NO. Online platform operators were not liable for making a communication to the public of copyright content uploaded by their users unless the online platform operators “contribute” to giving such access.
What counts as contribution? The CJEU provides a few examples including where the platform:
- has specific knowledge that copyright content is available illegally on its platform and refrains from expeditiously deleting or blocking access to it;
- knows or ought to know, in a general sense that users are making copyright content available to the public illegally via its platform, but still refrains from implementing appropriate technological measures that can be expected from a reasonably diligent operator in its position, to counter such infringements; and/or
- participates in selecting copyright content illegally communicated to the public, provides tools specifically intended for the illegal sharing of such content or knowingly promotes such sharing, which may be confirmed by the fact that the operator uses a financial model that encourages users to communicate protected content to the public through its platform.
Q2: Can online platform operators rely on the E-Commerce Directive safe harbour exemptions?
YES. This provided that the online platform operator’s conduct is merely technical, automatic and passive (i.e. no knowledge of or control over the content it stores). However, it will lose the exemption if it plays an active role that gives it knowledge of or control over that content (e.g. knowledge of specific illegal acts).
Q3: Can copyright owners be required by national law to jump through hoops to obtain injunctions against online platform operators without knowledge of infringement by their users?
MAYBE. The CJEU said that the Copyright Directive permits a situation under national law where a right holder may not be able to obtain an injunction against the online platform if that platform has no knowledge or awareness of the infringement, unless before the right holder commences legal proceedings, the platform has been notified of, and failed to expeditiously remove or block access to, the content. The CJEU said that it is for the national court to satisfy itself that applying such a condition would not result in such a delay to the cessation of the infringement that would cause disproportionate damage to the right holder.
At first blush this decision is a convincing victory for online platforms like YouTube in making them generally not liable for the actions of their users. However, the victory will be short lived and the precedent value of the case is fairly limited.
Why? Crucially, the case was decided under old Directives. The new EU Copyright Directive required implementation by Member States by 7 June 2021 (see our post here). Very controversially, this requires, amongst other things, that online platforms use “best efforts” to obtain authorisation from the right holders for works uploaded by users, expeditiously remove or disable access to content upon receiving sufficient notice and prevent their future uploads. The EC has published Guidance on what compliance with these requirements entails. So whilst online platform operators may have won this ‘battle’ before the CJEU, with the new requirements of the EU Copyright Directive on "best efforts", they seem unlikely to win this ‘online war’.
Many thanks to Alyssa Medalla for her research assistance in preparing this post.
“YouTube is a leader in copyright and supports rights holders being paid their fair share... That’s why we’ve invested in state of the art copyright tools which have created an entirely new revenue stream for the industry. In the past 12 months alone we have paid $4 billion to the music industry, over 30% of which comes from monetised user generated content.” - YouTube spokesperson