However, those operators do make such a communication in breach of copyright where they contribute, to giving access to such content to the public, beyond merely making those platforms available.
The Court of Justice of the European Union has delivered its ruling in Joined Cases C-682/18 YouTube, C-683/18 Cyando.
In the first case, a music producer called Frank Peterson brought an action against YouTube and Google in the German courts. The dispute related to the posting online of some recordings over which he claimed to hold various rights. The recordings were posted without his permission. In the second case, the publisher Elsevier brought an action relating to the uploading of various works over which Elsevier holds exclusive rights.
The Bundesgerichtshof referred a number of questions to the Court for a preliminary ruling to clarify the liability of the operators of online platforms regarding copyright-protected works illegally posted by users of their platforms.
The Court considered Directive 2001/29 on copyright, Directive 2000/31 on electronic commerce, and Directive 2004/48 on the enforcement of copyright. The questions referred did not concern Directive 2019/790 relating to copyright and related rights in the Digital Single Market, which came into force subsequently.
The court’s judgment
The Court ruled that operators of online platforms do not themselves make a communication to the public of copyright-protected content illegally posted online by users of those platforms unless those operators contribute, beyond merely making those platforms available, to giving access to such content to the public in breach of copyright. In addition, the Court ruled that such operators may benefit from the exemption from liability under Directive 2000/31 unless they play an active role of such a kind as to give them knowledge of or control over the content uploaded to their platform.
Assessment by the Court
The Court considered whether the operator of a video-sharing platform or a file-hosting and -sharing platform on which users can illegally make protected content available to the public itself carries out, in circumstances such as those at issue in these two cases, a ‘communication to the public’ of that content under Directive 2001/29. The Court considered the objectives and definition of the concept of a ‘communication to the public’ as well as the associated criteria which must be taken into account when making an individual assessment of what that concept means.
Amongst those criteria, the Court emphasised the indispensable role played by the platform operator and the deliberate nature of its intervention. A platform operator makes an ‘act of communication’ when it intervenes, in full knowledge of the consequences of its action, to give its customers access to a protected work, particularly where, in the absence of that intervention, those customers would not, in principle, be able to view the work concerned.
In that context, the Court ruled that in those circumstances the platform operator does not make a ‘communication to the public’ of that content under Directive 2001/29, unless it contributes, beyond merely making that platform available, to giving access to such content to the public in breach of copyright.
This would apply if the operator has specific knowledge that protected content is available illegally on its platform and refrains from expeditiously deleting it or blocking access to it, or where that operator, despite the fact that it knows or ought to know, in a general sense, that users of its platform are making protected content available to the public illegally via its platform, does not put in place the appropriate technological measures that can be expected from a reasonably diligent operator in its situation to counter credibly and effectively copyright infringements on that platform, or where that operator participates in selecting protected content illegally communicated to the public, provides tools on its platform specifically intended for the illegal sharing of such content or knowingly promotes such sharing, illustrated by the fact that that operator has adopted a financial model that encourages users of its platform illegally to communicate protected content to the public via that platform.
The Court also considered if the operator of online platforms may benefit from the exemption from liability, provided in Directive 2000/31, regarding protected content which users illegally communicate to the public via its platform. The Court examined whether the role played by that operator is neutral, ie is the conduct merely technical, automatic and passive, which means that it has no knowledge of or control over the content it stores. Or does the operator play an active role that gives it knowledge of or control over that content. The Court ruled that such an operator can benefit from the exemption from liability, provided that it does not play an active role which gives it knowledge of, or control over, the content uploaded to its platform. The Court said that, for such an operator to be excluded from the exemption from liability, it must have knowledge or awareness of specific illegal acts committed by its users relating to protected content that was uploaded to its platform.
Finally, the Court clarified when rightholders can obtain injunctions against operators of online platforms under Directive 2001/29. It ruled that the Directive does not prevent a situation under national law whereby a copyright holder or the holder of a related right may not obtain an injunction against an operator whose service has been used by a third party to infringe his or her right, that operator having had no knowledge or awareness of that infringement under Directive 2000/31, unless, before court proceedings are commenced, that infringement has first been notified to that operator and the latter has failed to intervene expeditiously to remove the content in question or to block access to it and to ensure that such infringements do not recur.
However, it is for the national courts to decide, when applying such a condition, that that condition does not result in the actual cessation of the infringement being delayed so that it causes disproportionate damage to the rightholder.