Prepared by Luca Spada and Alice Minisini
“As EU law currently stands, 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“.
This, in brief, is the opinion of the Court of Justice of the European Union in its judgment of last June 22 with regard to the joined cases C-682/18 YouTube and C-683/18 Cyando (respectively, “CJEU” or “Court“, and “Judgment“).
The issue in both disputes consists in the copyright infringement perpetrated through the illegal uploading of protected contents on and their subsequent unauthorized communication to the public through YouTube and Uploaded platforms: in the first case, a music producer brought an action before the German courts against the famous American video sharing platform and its legal representative Google, in respect of the posting online, in 2008, of a number of phonograms over which he has claimed to be the legitimate rightsholder; in the second case, the publisher Elsevier took action, again in Germany, against the Swiss hi-tech company in respect to the unauthorized publication by some users of protected material on the hosting platform Uploaded managed by Cyando itself.
The Bundesgerichtshof (“BGH“), the German Federal Court of Justice, before deciding on the two cases, has referred a number of questions to the Court for a preliminary ruling so that the latter can provide clarifications, in particular, as to whether platform operators can be held liable for the unauthorized uploading of copyright-protected contents on such platforms by their users.
The CJEU based its decision on the set of rules in force at that time – consisting of Directive 2000/31/EC on electronic commerce (“Directive 2000/31“), Directive 2001/29/EC on copyright (“Directive 2001/29“), as well as Directive 2004/48/EC on the enforcement of intellectual property rights (“Directive 2004/48“) (Directive (EU) 2019/790 on copyright and related rights in the digital single market (“Directive 2019/790“) was not taken into account as it has entered into force after the events at stake occurred) – noting, inter alia, that:
- in the first place, the provider of a sharing/hosting platform on which users have illegally uploaded protected contents carries out itself a “communication to the public” of such contents within the meaning of Directive 2001/29 only when it intervenes in full knowledge to give its users access to a protected work and, particularly where, in the absence of such intervention, those users would not have been able to enjoy the broadcast work. In this regard, the CJEU has therefore found that a provider cannot be considered the author of a communication to the public unless it contributes – beyond merely making the platform available – to give access to a content in breach of copyright; this would happen when the provider has specific knowledge that a protected content is available illegally on its platform and has adopted behaviors that reveal a certain degree of willfulness (among which, for example, the lack of promptness in removing such content, refraining from blocking access or implementing the technical measures that would be expected from a normally diligent operator in order to credibly and effectively counteract copyright infringement on the platform, participating in the selection of protected shared content, or providing tools intended for the illegal sharing);
- in the second place, the provider may benefit from the exemption from liability provided for by Directive 2000/31 when he plays a neutral role – i.e. technical, automatic and passive – implying the it has no knowledge or control over the hosted contents, being on the contrary excluded when it is aware of the illegal acts carried out by its users.
On the basis of the above and as EU law applicable at the time facts occurred, the Court has therefore excluded that the providers carry out a communication to the public of copyrighted contents made illegally available on the platforms by their users – thus normally being entitled to benefit from the application of the safe harbor regime provided by Directive 2000/31 – unless they themselves contribute, beyond merely making those platforms available, to giving access to such contents to the public.Even if the solution of the disputes is matter for the national judge, the reasoning adopted by the CJEU would therefore exclude any liability of YouTube and Cyando.
In any event, it should be stressed that the questions referred to in the Judgment were resolved without the CJEU having been able to take into account the framework – which came into force after the events at stake occurred – established by Directive 2019/790, which provides for a new specific liability regime for sharing platforms in respect of works illegally posted online by their users, according to which the providers are considered authors or participants in the communication to the public, being potentially directly liable. The deadline for Member States to implement the provisions of the new Directive expired on June 7, 2021.
 Court of Justice of the European Union, Press release no 108/21, available at the following link: https://curia.europa.eu/jcms/upload/docs/application/pdf/2021-06/cp210108en.pdf.
 Court of Justice of the European Union, Judgment of the Court (Grand Chamber), Joined Cases C‑682/18 Frank Peterson v Google LLC, YouTube Inc., YouTube LLC, Google Germany GmbH and C‑683/18 Elsevier Inc. v Cyando AG, June 22, 2021, available at the following link: https://curia.europa.eu/juris/document/document.jsf;jsessionid=7C48AA55C74D7FC81AFDD41F7206C913?text=&docid=243241&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=1434811.
 Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market.
 Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society.
 Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights.
 Directive (EU) 2019/790 of the European Parliament and of the Council of 17 April 2019 on copyright and related rights in the Digital Single Market and amending Directives 96/9/EC and 2001/29/EC.
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