Under current EU law, operators of online platforms such as YouTube and Uploaded are not directly liable for the illegal uploading of copyrighted works by users of those platforms, said Advocate General Henrik Saugmandsgaard Øe of the Court of Justice of the European Union, in his Opinion delivered on Thursday 16 July (Joined Cases C-682/18 and C-683/18).
Both cases concern the unauthorised posting of protected works by users on YouTube and Uploaded platforms.
Transposable by June 2021 at the latest, the Directive (2019/790) reforming copyright and related rights in the digital age will require online platform operators to obtain authorisation from copyright holders - for example, by concluding a licensing agreement - for works put online by users (see EUROPE 12336/4). However, this Directive is not yet applicable.
The Court of Justice is therefore invited to clarify the liability of these operators under the existing regime: Directive (2000/31) on electronic commerce, Directive (2001/29) on the harmonisation of certain aspects of copyright and related rights in the information society, Directive (2004/48) on the enforcement of intellectual property rights.
In his Opinion today, the Advocate General proposes that the Court should rule that operators of electronic platforms are not directly liable for an infringement of the exclusive right of authors under Directive 2001/29 to communicate their works to the public where users of their platforms put protected works online illegally.
According to the Advocate General, these operators do not themselves perform an act of “communication to the public”. They act as an intermediary providing physical facilities which enables users to carry out such a communication. Any primary liability for such “communication” is therefore borne solely by those users.
Mr Saugmandsgaard Øe pointed out that the uploading of a file on a platform is automatic without the platform operator selecting or determining in any other way the content that is published.
He adds that Directive 2001/29 is not intended to govern ‘secondary’ liability, that is to say, the liability of persons who facilitate third parties in carrying out illegal “communications to the public”. This liability, which generally involves knowledge of unlawfulness, comes under the national law of the Member States.
Moreover, electronic platform operators may, in principle, benefit from the exemption from liability provided for by Directive 2000/31 for the files they store at the request of their users, provided that they did not play an ‘active role’ of such a kind as to give them ‘knowledge of, or control over’ the information in question.
According to the Advocate General, this exemption applies horizontally, to all forms of liability, which the providers in question may incur in respect of any kind of information stored at the request of the users of their services, whatever the source of that liability, the field of law concerned and the characterisation or exact nature of that liability. For Mr Saugmandsgaard Øe, this provision therefore covers both primary and secondary liability for the information provided and the activities initiated by those users.
The Advocate General specifies that the situations in which the exoneration at issue does not apply, namely when the service provider has “actual knowledge of illegal activity or information”, refer, in principle, to specific illegal information. Otherwise, there would be a risk of platform operators becoming judges of online legality and “over-removal” of content stored by them at the request of users of their platforms in so far as they also remove legal content.
Lastly, Mr Saugmandsgaard Øe proposes that the Court rule that, irrespective of the question of liability, rightholders may obtain, under EU law, injunctions against the operators of online platforms, which can impose obligations on the latter if 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.
See the conclusions: https://bit.ly/3h84FM6 (Original version in French by Mathieu Bion)