Legal Director and Professional Support Lawyer Nina O'Sullivan spoke to the BBC World Service about a recent European Court of Justice decision regarding the uploading and hosting of copyright materials to online sharing platforms such as YouTube.
The judgment relates to two claims brought in the German courts – one brought by music producer Frank Peterson against YouTube and its parent company Google regarding a number of Sarah Brightman recordings uploaded to the site in 2008. The other was brought by publisher Elsevier against file hosting platform Cyando, concerning the sharing of medical textbooks.
Commenting on the judgment, Nina said:
"The key question for these cases was whether platforms like YouTube are communicating copyright works to the public.
In both cases, the court has said that whilst the users are communicating copyright works to the public, platforms are not doing so – unless they do something that goes beyond simply making the platform available, or they have knowledge or control over the content uploaded to the platform.
The Court suggested that examples of this scenario could be where the platform has knowledge that protected content is available illegally and it does not take it down expeditiously, or it knows that users are making such content available and does not put in place appropriate technological measures that might be expected from a reasonably diligent operator."
It is important to note that this ruling is based on EU laws that are set to change for certain platforms. EU member states were required to implement the Digital Single Market Copyright Directive into their national laws by 7 June 2021. The Directive sets out a new regime for 'online content sharing service providers' in relation to dealing with copyright works uploaded by users to their platforms.
The relevant provision, Article 17, requires platforms like YouTube to comply with the regime set out in the Directive in relation to such works. It is, however, a controversial provision and is subject to a legal challenge as to its compatibility with the EU Charter of Fundamental Rights. A decision from the EU Court of Justice on this point is expected later this year.
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