On top of legitimately uploaded content, platforms such as YouTube became hosts to millions of infringing uploads, with rightsholders having to devote considerable resources to have them taken down. As a result, some rightsholders have taken legal action against the platforms themselves, trying to hold them liable for the infringements of their users.
Two Cases Reached Europe’s Highest Court
The first, brought by music producer Frank Peterson against YouTube and Google in Germany, complained that tracks by artist Sarah Brightman from the album ‘A Winter Symphony’ were uploaded to YouTube in 2008 without his permission.
The second, also filed in Germany, saw publisher Elsevier filing a complaint against Cyando, the owner of file-hosting platform Uploaded. The company complained that its copyrighted works, including ‘Gray’s Anatomy for Students’, ‘Atlas of Human Anatomy’ and ‘Campbell-Walsh Urology’, had been stored on Uploaded in 2013 by the site’s users in breach of the publishers’ exclusive rights.
Both of these cases are being heard by the Federal Court of Justice, which referred several questions to the EU Court for a preliminary ruling. Today the EU Court published Advocate General Saugmandsgaard Øe’s opinion, advising that platforms such as YouTube and Cyando/Uploaded are not directly liable under the Copyright Directive when their users upload copyright-protected content.
The Advocate General’s Advice to the EU Court
“[O]perators such as YouTube and Cyando do not, in principle, carry out an act of ‘communication to the public’ themselves in such a case. The role played by those operators is, in principle, that of an intermediary providing physical facilities which enable users to carry out a ‘communication to the public’. Any ‘primary’ liability arising from that ‘communication’ is therefore borne, as a rule, solely by those users,” a statement on the opinion reads.
Advocate General Saugmandsgaard Øe notes that uploads initiated by users of YouTube and Uploaded are processed automatically and that any check made in advance by the platforms “does not constitute selection in so far as that [the] check is confined to identifying illegal content and does not therefore reflect its intention to communicate certain (and not other) content to the public.”
Furthermore, platforms like YouTube (at least in principle) are able to benefit from an exemption from liability for infringing files uploaded by users, provided they do not play an active role that gives them knowledge of or control over the content. In short, if the platforms are not aware that content is infringing and process takedown requests to remove it when appropriate, they cannot be held liable.
Rightsholders Still Able to Obtain Injunctions Against Platforms
Irrespective of the question of liability, the Advocate General advises the EU Court that rightsholders can still apply for injunctions against online platforms in order to defend their rights.
“Rightholders must be able to apply for such an injunction where it is established that third parties infringe their rights through the service provided by platform operators, without the need to wait for an infringement to take place again and without the need to show improper conduct by the intermediary,” his advice adds.
Conclusion and Article 17 (formerly Article 13)
While the Advocate General’s opinion is not binding, in most cases the EU Court of Justice adopts such recommendations in its final decision. When that happens the cases will head back to the Federal Court of Justice in Germany but unlike previous important copyright rulings that set the stage for years to come, the situation on the ground for companies like YouTube will soon change.
As reported extensively last year, the EU has a new Copyright Directive which includes the so-called “upload filter” requirements of Article 17 (formerly Article 13). That legislation mandates a lot more responsibility for platforms like YouTube and Uploaded.
“That directive, which must be transposed by each Member State into its national law by 7 June 2021 at the latest, requires, inter alia, those operators to obtain an authorization from the rightholders, for example by concluding a licensing agreement, for the works uploaded by users of their platforms,” the EU Court noted in today’s opinion, adding that since the directive is not yet in force, it doesn’t apply to the cases above.