To be liable or not to be liable - can online platform operators such as YouTube be directly liable for user-uploaded content?

On 16 July 2020, Advocate General (AG) Saugmandsgaard Øe delivered his much-anticipated opinion to the Court of Justice (CJEU) concerning the liability of online platform operators such as YouTube.

In a welcome development for content sharing platforms, the AG advised that, as the law currently stands, such operators should not be directly liable for the illegal uploading of copyright-protected works by platform users.

Background

The issues in dispute concerned the joined cases of C-682/18 (YouTube) and C-683/18 (Cyando)[1]:

• 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 at stake is whether, by making available user-uploaded content, this constitutes an act of “communication to the public” under Article 3(1) of the InfoSoc Directive.[2]

The AG’s Opinion

The AG has advised the CJEU that platform operators such as YouTube and Cyando are not directly liable for infringement of the exclusive right to communicate to the public where its users upload infringing content, on the basis that:

• These operators do not themselves carry out an act of ‘communication to the public’ as they provide an intermediary service to enable users to carry out a communication. Any primary liability should therefore be limited to the users actually uploading the content.
• The process of uploading content to these platforms is automated and does not involve the operator determining or selecting the content that is ultimately published.
• The Directive in question is not intended to govern the liability of those that facilitate third parties in carrying out unlawful communications - that is a separate matter for national laws.
• Platform operators may benefit from an exemption from liability where files are stored at the request of users, provided that they do not play an active role which would give knowledge or control to the operator. If, on the other hand, the operator has actual knowledge of illegal activity (or circumstances from which illegal activity is apparent) and does not promptly remove or disable access to the content, then the exemption would not apply.

One of the factors influencing the AG’s opinion was the desire to avoid making platform operators judges of online legality and risking “over-removal” of content.

Leaving aside the question of liability, the AG did however advise the CJEU that rightsholders may obtain injunctions under EU law against the relevant platform operators where there is third party infringement – such that an injunction could be obtained without needing to show improper conduct by the platform operator.

Comment

It remains to be seen whether the CJEU will follow the AG’s opinion when it delivers its judgment (expected later this year). However, this development will be well received by YouTube and similar content platforms, providing an indication that operators of such platforms should not face direct liability for communicating to the public where its users upload infringing content. Instead, the existing regime for intermediary liability is likely to continue to afford some protection to such platforms, with the need for operators to have acquired certain knowledge of the infringing activity.

Rightsholders will, however, take some comfort from the AG’s recognition that the issues around liability should not hinder their ability to seek injunctive relief.