By its recent judgment of 22 June 2021, the Court of Justice of the EU (CJEU) tackled issues with important implications on sharing online platforms such as YouTube (joined cases C-682/18 and C-683/18). The issues were referred to the CJEU by the German Federal Court of Justice and relate to whether online sharing platforms such as YouTube perform copyright-restricted acts, incl. possible copyright infringements, when protected content is illegally made available by their users.
In a nutshell, the first of the joined cases referred to the CJEU concerns a court dispute for illegally making available of recordings and performances of Sarah Brightman on YouTube. The second case was brought forward by the international publisher Elsevier regarding specialized medical literature which was made available on the “Uploaded” file-hosting and sharing platform.
The CJEU clearly confirmed that when the users of platforms, such as YouTube, illegally upload protected content they generally perform “acts of communication to the public” (Art. 3 of the InfoSoc Directive) of this content and are potentially liable for copyright breach. When assessing the platform operators’ contribution in such cases, however, the Court provided more of a guidance as to when platform operators may be liable. The criteria discussed by the Court were as follows.
The CJEU noted that when the respective platform is indispensable, i.e. when it facilitates the sharing of content which otherwise would be impossible or far more complex, this points towards a copyright-restricted act of communication to the public. However, this is not the sole criterion to be considered. Even if the respective platform is necessary to facilitate the sharing of content, the Court took the view that that it is crucial whether the platform operator acts deliberately, i.e. whether it acts with full knowledge of the consequences of his actions as an intermediary in the illegal content sharing.
Based on the above fundamental premise, the Court concluded that the operator of an online sharing platform such as YouTube performs the copyright-restricted act of “communication to the public”, and is potentially liable, when it contributes, beyond merely making that platform available, to giving access to such content to the public in breach of copyright. Again, in a non-exhaustive fashion the Court gave the following examples of when an online sharing platform such as YouTube may be committing a breach of copyright in the form of illegal communication to the public:
- When the operator has specific knowledge that protected content is available illegally on its platform and refrains from expeditiously deleting or blocking access to it. This would be the case when YouTube is sent a copyright takedown request from a legitimate rightsholder and does not delete/block the flagged content (or delays such deletion or blocking for unreasonable period);
- When the operator, although it generally knows or must know that users are making protected content available illegally via its platform, has not put in place appropriate and reasonably diligent technological measures to effectively address any copyright infringements on that platform. This would be the case for example when a platform does not provide even basic mechanisms for copyright owners to track down infringing content (such mechanism is, for instance, YouTube’s content-recognition software which enables to identify other videos on YouTube having the same content in whole or in part); and/or
- When the operator himself participates in selecting copyright-protected content which is illegally made available on its platform, as well as when the operator provides tools on its platform specifically intended for the illegal sharing of such content or knowingly promotes such sharing. For instance, this would be the case when the platform operator has adopted a financial model that incentivizes users of its platform to illegally post copyright-protected content.
As seen in other cases, the CJEU does not provide clear-cut answers to the issues raised by it, but rather leaves for national courts to decide on a case-by-case basis. Nevertheless, based on the Court’s ruling, it may be concluded that online platform operators, such as YouTube, are “innocent” for illegal communication to the public of a copyrighted work, provided that: (a) they are unaware at all of the concrete infringement(s) committed or delete/block the infringing content immediately upon becoming aware; (b) they have taken appropriate technological measures to fight copyright breaches; and (c) they do not themselves select, promote or encourage in any way the illegal sharing of copyright-protected works.