The Court of Justice of the European Union (CJEU) clarified on Tuesday 22 June, in a Grand Chamber judgment in joined cases C-682/18 and C-683/18, platform operators’ liability, such as YouTube and Cyando when copyrighted works are illegally uploaded by their users.
It held that, as EU law currently stands, operators of online platforms do not themselves make a communication to the public of copyrighted content that their users illegally upload, unless those operators contribute, beyond the mere provision of the platforms, to giving the public access to such content in violation of copyright.
This is the case, for example, if the operator has actual knowledge of the unlawful availability of protected content on its platform and fails to remove or block access to it promptly, or if the operator, while aware that protected content is being made unlawfully available to the public via its platform, fails to implement the appropriate technical measures that may be expected of a diligent operator, the Court said.
Furthermore, it ruled that these operators can benefit from the exemption from liability, within the meaning of Directive 2000/31, provided that they do not play an active role such as to give them knowledge and control of the content uploaded to their platform.
It should be noted that the Court examined this liability in light of the regime applicable at the time of the facts, namely in light of Directive 2001/29 on copyright, Directive 2000/31 on electronic commerce and Directive 2004/48 on the enforcement of intellectual property rights.
Its interpretation is therefore limited in scope, since the regime established by Directive 2019/790 on copyright and related rights in the digital single market (see EUROPE 12236/4), which reinforces platforms’ liability for the content posted by their users, has not been taken into account.
It is now up to the German Courts, to which these two cases have been referred, to interpret the CJEU judgement and to decide on YouTube’s liability for several tracks by the artist Sarah Brightman uploaded in 2008 and Cyando regarding the uploads in 2013 of the works Gray’s Anatomy for Students, Atlas of Human Anatomy, and Campbell-Walsh Urology.
See the judgment: https://bit.ly/3gLYct5 (Original version in French by Marion Fontana)