CJEU rules platforms like YouTube not liable for infringing content posted by users

Frank Peterson, a music producer, approached Bundesgerichtshof- the Federal Court of Justice, Germany (German Court) suing YouTube LLC and its parent company Google LLC for copyright infringement, when certain users uploaded several copyrighted phonograms belonging to him on YouTube in 2008.

In another case, a Netherlands-based publishing group company, viz. Elsevier approached the German Court against the file-hosting service, Cyando after its users uploaded several of Elsevier’s copyrighted works on Cyando in 2013 without its approval.

Several such long-running battles are on-going between Europe’s creative industry and online platforms that host content.

Consequentially, the German Court sought advice from the Court of Justice of the European Union (CJEU).

The Attorney General, suggested that the Court rule that platforms such as YouTube and Cyando do not, in principle, indulge in ‘communications to the public’. Thus, the platforms are not directly liable for any infringement when their users illegally upload protected works.

Article 3 of Directive 2001/29 gives authors the exclusive right to communicate their works to the public, while Article 14 of Directive 2000/31 exempts intermediary service providers from liability for the information which they store at the request of users of their services.

Therefore, the question before the German Court in the two matters was whether the former provision applies to such platform operators, whether they may rely on the latter provision and how those provisions are interrelated.

Some online platforms allow large-scale copyright infringement, from which their operators profit to the detriment of the copyright holders, which justifies the imposition of extensive obligations to monitor the content uploaded to those platforms by users of their platforms.

While those that do not fall in the first category, imposing on them extensive obligations to monitor the content uploaded on their platforms would significantly affect their activity and the rights of those users would undermine freedom of expression and creativity online.

He also stated that as per a new directive enacted in 2019 with respect to operators such as YouTube, a specific liability regime was established for works illegally uploaded by users. However, since the new directive came into force in the course of the present preliminary ruling proceedings, the same does not apply to the disputes in the main proceedings. These cases will therefore have to be determined through the lens of the legal framework prior to that, regardless of whatever approaches may have been adopted by the EU legislature.

The CJEU in its judgment dated 22nd June 20215 held that, "As currently stands, operators of online platforms do not, in principle, themselves make a communication to the public of copyright-protected content illegally posted online by users of those platforms However, those operators do make such a communication in breach of copyright where they contribute, beyond merely making those platforms available, to giving access to such content to the public.".

The CJEU stated that the platforms could also be liable if they do not put in place the appropriate technological tools to tackle copyright breaches by their users or in cases where the platform itself provides tools for sharing illegal/unauthorized content.

This case clarifies the position with respect to the long-running debate on the responsibilities of online platforms. Wherever the platform is in a passive role there will be no liability, however, where it is in an active role there will be a liability.

However, the Court did not state any guidelines to differentiate the active and the passive roles of a platform.

After this judgment, platforms like YouTube, Facebook, Instagram, and the like will have to incorporate mechanisms to prevent users from uploading copyrighted materials.

5C-682/18 YouTube and C-683/18 Cyando.