In a much-awaited judgement
(joined cases C-682/18 and C-683/18), the Court of Justice of the European Union gave answer to a series of questions posed by the Bundesgerichtshof (Federal Court of Justice, Germany), in the framework of a request for a preliminary ruling under article 267 TFEU.
In the first case, a music producer, Frank Peterson, brought proceedings against YouTube
and its parent company Google before the Landgericht Hamburg (Regional Court, Hamburg, Germany) regarding the uploading to YouTube of several phonograms to which he claims to hold various intellectual property rights. Users had uploaded material to that platform without his authorisation.
In the second case, an international specialist publisher, Elsevier, brought an action against Cyando before the Landgericht München I (Regional Court I, Munich, Germany) regarding the uploading to its file-hosting and file-sharing platform Uploaded of various works to which Elsevier holds the exclusive rights. The material had also been uploaded by users of that platform without authorisation.
The Bundesgerichtshof (Federal Court of Justice, Germany), which was hearing both cases, decided to stay the proceedings and referred several questions to the Court.
First question: the concept of “communication to the public”
The first question revolved around the interpretation of Article 3(1) of the Copyright Directive, in particular the concept of “communication to the public”. This provision provides as follows:
‘1. Member States shall provide authors with the exclusive right to authorise or prohibit any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access them from a place and at a time individually chosen by them.’
The referring court sought to know whether this provision had to be interpreted as meaning that the operator of a video-sharing platform or a file-hosting and ‑sharing platform, on which users illegally make protected content available to the public, itself makes a ‘communication to the public’ of that content, within the meaning of that provision, taking into account the circumstances in the main proceedings.
The CJEU sustained that Article 3(1) of the Copyright Directive had to be interpreted as meaning that the operators of said platforms do not make a ‘communication to the public’ of that content, within the meaning of that provision, unless they contribute, “beyond merely making that platform available, to giving access to such content to the public in breach of copyright”.
The Court explains some situations in which operators are considered to make this contribution:
i) If the operator has specific knowledge that protected content is available illegally on its platform and refrains from expeditiously deleting it or blocking access to it,
i) if that operator refrains from putting in place the appropriate technological measures that can be expected from a reasonably diligent operator in its situation in order to counter credibly and effectively copyright infringements on that platform, 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,
i) if that operator participates in selecting protected content illegally communicated to the public, provides tools on its platform specifically intended for the illegal sharing of such content or knowingly promotes such sharing.
Second and third questions: exemption of liability
To answer these questions, the Court examines Article 14(1) of the Directive on Electronic Commerce. This provision establishes the exemption from liability (as long as certain requirements are met) for service providers storing information:
“1. Where an information society service is provided that consists of the storage of information provided by a recipient of the service, Member States shall ensure that the service provider is not liable for the information stored at the request of a recipient of the service […]”
The Court stated that this provision had to be interpreted not only in the light of its wording, but also of its context and the objectives of the legislation of which it forms part. The Court carried out a detailed analysis on the role of the operator of a video-sharing platform or a file-hosting and -sharing platform to determine whether the operator played a neutral or an active role.
The Court concluded that Article 14(1) of the Directive on Electronic Commerce had to be interpreted as meaning that the activity of the operator of a video-sharing platform or a file-hosting and -sharing platform falls within the scope of that provision, provided that the operator does not play an active role of such a kind as to give it knowledge of or control over the content uploaded to its platform.
Therefore, if the operator has knowledge of or awareness of specific illegal acts committed by its users relating to protected content that was uploaded to its platform, it will not be covered by the exemption.
The Court remarked that an abstract knowledge that protected content is being made available illegally on its platform is not sufficient, therefore it is required ‘specific’ knowledge. However, they are not sufficient grounds to conclude that the operator has ‘specific’ knowledge about illegal activities being carried out on the platform the following facts: (i) that the operator automatically indexes content uploaded to that platform, (ii) that the platform has a search function and (iii) that it recommends videos on the basis of users’ profiles or preferences.
Fourth question: notification of the infringement
This question concerns Article 8(3) of the Copyright Directive. This provision sets forth that rightholders can request an injunction against intermediaries:
“3. Member States shall ensure that rightholders are in a position to apply for an injunction against intermediaries whose services are used by a third party to infringe a copyright or related right.”
The referring court asked whether this provision precludes a situation where the rightholder is not able to obtain an injunction against an intermediary unless that infringement has previously been notified to that intermediary.
The Court concluded that Article 8(3) of the Copyright Directive must be interpreted as not precluding a situation under national law whereby a copyright holder may not obtain an injunction against an intermediary unless, before court proceedings are commenced, that infringement has first been notified to that intermediary.
The latter needs to have the opportunity to intervene expeditiously in order to remove the content in question or to block access to it, thus ensuring that such infringements do not recur. The Court adds that national courts must ensure that this requirement does not result in the effective cessation of the infringement being delayed in such a way as to cause disproportionate damage to the right holder.
As for the fifth and sixth question
, the Court stated that there was no need to answer them.
This judgment sheds further light on the question of the platforms’ liability and the criteria that allow them to take advantage of the exemption from liability for illegal content uploaded by users. It is of particular interest in the current context in which the transposition of Directive 2019/790 of the European Parliament and of the Council of 17 April 2019 on copyright and related rights in the digital single market ("DDAMUD") into Spanish law is pending, whose deadline expired on 7 June 2021.