YouTube and other online platforms aren’t liable for copyright infringing uploads made ‘autonomously’ by users; ECJ favours YouTube in a major Copyright battle

European Court of Justice (ECJ): In a landmark Copyright case, the Grand Chamber composed of K. Lenaerts, President, R. Silva de Lapuerta, Vice-President, J.‑C. Bonichot, M. Vilaras, E. Regan and M. Ilešič (Rapporteur), Presidents of Chambers, E. Juhász, M. Safjan, D. Šváby,S. Rodin, F. Biltgen, K. Jürimäe and C. Lycourgos, JJ.,  rules in the favour of renowned media giant YouTube. The Bench held that,

YouTube and other such intermediaries cannot be made liable for copyright infringement unless the intermediary/operator had specific knowledge that protected content is available illegally on its platform and refrains from expeditiously deleting it or blocking access to it.

The issue before the Court was regarding several infringements of the intellectual property rights held by Mr Peterson and Elsevier committed by users of the video‑sharing platform operated by YouTube and the file-hosting and -sharing platform operated by Cyando, respectively.

Peterson v. Youtube

Mr Peterson, a music producer and owner of the Nemo Studios had entered into a worldwide exclusive artist contract with the performer Sarah Brightman covering the use of audio and video recordings of her performances; including a licence agreement, covering the exclusive distribution of the recordings and performances.

On 4 November 2008, Sarah Brightman began a tour called the ‘Symphony Tour’ in which she performed the works she had recorded for the album Winter Symphony. Noticing that some private recordings from those concerts could be accessed on the YouTube online platform, Mr Paterson issued cease-and-desist declarations under threat of penalties to the owner of Youtube, Google Germany. Though the access to those videos was blocked initially, some audio recordings from Sarah Brightman’s performances, accompanied by still and moving images once again reappeared on YouTube’s online platform. Consequently, Mr Peterson brought an action against Google and YouTube seeking an injunction, disclosure of information and a declaration that they were liable to pay damages.

Elsevier v. Cyando

Elsevier, an international specialist publisher, held the exclusive rights to use the works at issue namely Gray’s Anatomy for Students, Atlas of Human Anatomy and Campbell-Walsh Urology. On being aware that Cyando, an operator of ‘Uploaded’ file-hosting and -sharing platform, had uploaded three works in respect of which it (Elsevier) held exclusive rights, Elsevier had send a notice to Cyando. Later on, Elsevier brought an action against Cyando for prohibitory injunction, as the party responsible for the copyright infringements in the alternative, as a participant in those infringements and, in the further as an interferer.

Questions Referred

1. Whether Article 3(1) of the Copyright Directive must be interpreted as meaning that 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 makes a ‘communication to the public’ of that content, within the meaning of that provision, in conditions such as those at issue in the main proceedings.
2. Whether Article 14(1)(a) of that directive must be interpreted as meaning that, for that operator to be excluded, under that provision, from the exemption from liability provided for in Article 14(1), it must have knowledge of specific illegal acts committed by its users relating to protected content that was uploaded to its platform.
3. Whether Article 8(3)of the Copyright Directive must be interpreted as precluding a situation where the right holder is notable to obtain an injunction against an intermediary whose services are used by a third party to infringe the rights of that right holder unless that infringement has previously been notified to that intermediary and that infringement is repeated.

Findings of the Court

‘Communication to the Public’ whether by the operator/intermediary or by users?

Under Article 3(1) of the Copyright Directive, Member States are to provide authors with the exclusive right to authorise or prohibit any communication to the public of their works, the authors thus have a right which is preventive in nature and which enables them to intervene between possible users of their work and the communication to the public which such users might contemplate making, in order to prohibit such communication.

Communication to the Public

The Bench observed that potentially illegal content was uploaded to the platform concerned not by the operator, but by users, who acted autonomously and who were responsible for their own actions. In addition, it was the users of the platform who determine whether the content they had uploaded was made available to other internet users via that platform so that those other internet users could obtain access to it.

Further, YouTube does not intervene in the creation or selection of content uploaded to its platform by platform users, and that it does not view or monitor that content before it is uploaded; that content is uploaded to that platform automatically. It was also apparent that YouTube clearly informs its users, in its terms of service and every time a file is uploaded, that it is forbidden to post protected content on that platform in breach of copyright. Furthermore, where a video is blocked due to a report by the right holder, the user who has uploaded it is warned that his or her account will be blocked in the event of repeated infringements. In addition, YouTube has put in place various technological measures in order to prevent and put an end to copyright infringements on its platform, such as, inter alia, a notification button and a special alert procedure for reporting and arranging for illegal content to be removed, as well as a content verification program for checking content and content recognition software for facilitating the identification and designation of such content. Thus, it is apparent that that operator has adopted technological measures to counter credibly and effectively copyright infringements on its platform.

Regarding the Uploaded file-hosting and -sharing platform, it was common ground that a download link allowing access to uploaded content was communicated only to the user who uploaded the file and that the platform did not make it possible to share that link. Thus, in order to share that content, the user must either send the download link directly to the persons to whom he or she wishes to give access to that content or must publish that link on the internet, for example in blogs, forums or ‘link collections’. Moreover, the operator does not create, select, view or check content uploaded to its platform either. Furthermore, it informs its users, in the conditions of use of its platform, that they are prohibited from infringing copyright via that platform.

Consequently, the Bench held that

Article 3(1) of the Copyright Directive must be interpreted as meaning that 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, does not make a ‘communication to the public’ of that content, within the meaning of that provision, unless it contributes, beyond merely making that platform available, to giving access to such content to the public in breach of copyright.

The Bench clarified, an operator could only be held liable for the infringement made via its platform where it 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, refrains from putting in place the appropriate technological measures that can be expected from a reasonably diligent operator.

Whether Operators can claim exemption from liability?

In order to ascertain whether the operator of a video-sharing platform or a file-hosting and -sharing platform may be exempted under Article 14(1) of the Directive on Electronic Commerce from liability for the protected content which users illegally communicate to the public via its platform, it was necessary to examine whether the role played by that operator was neutral, i.e., whether its conduct was merely technical, automatic and passive, which mean that it had no knowledge of or control over the content it stores, or whether, on the contrary, that operator played an active role that gave it knowledge of or control over that content.

Noticing that the service providers concerned could not, in accordance with Article 15(1) of that directive, be subject to a general obligation to monitor the information which they transmit or store or to a general obligation actively to look for facts or circumstances indicating illegal activity; and that the Bench held that the platform operators at issue did not create, select, view or monitor content uploaded to their platforms, and the fact that the operator of a video-sharing platform, the Bench held that,

For such an operator to be excluded from the exemption from liability provided for in Article 14(1), it must have knowledge of or awareness of specific illegal acts committed by its users relating to protected content that was uploaded to its platform and that as soon as the service providers actually obtained knowledge or awareness of illegal information, it acted expeditiously to remove or to disable access to that information/content.

Whether actions can be brought against the intermediary without previously notifying it of infringement?

 Article 8(3) of the Copyright Directive provides that ‘Member States shall ensure that right holder are in a position to apply for an injunction against intermediaries whose services are used by a third party to infringe copyright or a related right’. Is that Article 8(3) of the Copyright Directive must be interpreted as not precluding a situation under national law whereby a copyright holder or holder of a related right may not obtain an injunction against an intermediary whose service has been used by a third party to infringe his or her right, that intermediary having had no knowledge or awareness of that infringement, within the meaning of Article 14(1)(a) of the Directive on Electronic Commerce, unless, before court proceedings are commenced, that infringement had first been notified to that intermediary and the latter had failed to intervene expeditiously in order to remove the content in question or to block access to it and to ensure that such infringements do not recur. The Bench opined,

Where the ‘interferer’ is a service provider whose service consists in storing information provided by a user, in principle that service provider can be the subject of a prohibitory injunction only if, after notification of a clear infringement of an intellectual property right had been provided, that right is infringed again or continued to be infringed because that service provider had not intervened expeditiously after that notification to remove the content in question or to block access to it and to ensure that such infringements do not recur.

[Frank Peterson v Google LLC & YouTube Inc., C‑682/18, decided on 22-06-2021]

Kamini Sharma, Editorial Assistant has reported this brief.