In its recent decision, the EU Court of Justice (CJEU) was asked to consider the liability of YouTube and a file-hosting and sharing platform (Cyando) in relation to infringements of copyright works committed by users on their respective platforms. This required an assessment of the liability regime under Article 3 of the Copyright Directive, and the exemption regime provided for internet service providers (ISPs) in the E-Commerce Directive.
Importantly, the CJEU did not assess the liability regime for certain platforms known as ‘online content sharing service providers’ (OCSSPs), such as YouTube, set out in Article 17 of the Digital Single Market (DSM) Copyright Directive, which EU Member States were required to implement into their national laws by 7 June 2021. The EU Commission has recently written to Member States, comprising a majority of them including France and Italy, in relation to their failure to implement the DSM Directive by the due date. This development comes against the backdrop of proceedings before the CJEU that have been brought by Poland challenging the Article 17 regime. The Advocate General has recently delivered his Opinion, and the CJEU’s decision is awaited.
Whilst the DSM Copyright Directive now governs the relevant liability regime in the EU for OCSSPs, the CJEU's decision in YouTube and Cyando remains an important one in the context of platform liability, for a number of reasons. First, it deals with the ongoing regime in respect of those platforms operating in the EU that are not in scope of the DSM Copyright Directive. Secondly, whilst the CJEU's decision is not binding on the UK courts, they may take it into account, including in relation to platforms such as YouTube, under the laws that have been retained in the UK on its departure from the EU. The DSM Copyright Directive regime does not apply in the UK though there have continued to be calls – for example in the recent Department of Culture, Media and Sport Committee report on the Economics of Music Streaming – for the UK Government to review safe harbour rules following the UK’s exit from the EU.
The German Court had referred two cases to the CJEU. The first case was a claim by music producer, Frank Peterson, against YouTube in relation to the posting by users in 2008 of Sarah Brightman recordings in which he owned the rights. Whilst YouTube had initially removed the recordings following his complaint, they later re-appeared on the platform. Elsevier had brought the second case in relation to three books, including Gray's Anatomy for Students, which were uploaded by users to the Uploaded platform managed by Cyando - the uploader received a download link, which it could share with others, but not via the platform.
The central issue before the CJEU was whether YouTube and Cyando, and similar online platforms, are communicating copyright works to the public within the meaning of Article 3(1) of the Copyright Directive, alongside the users themselves. A further issue was whether they can benefit from an exemption from liability in respect of information stored on their platforms in accordance with Article 14(1) of the E-Commerce Directive.
Drawing together principles based on a series of its decisions over the last 20 years or so, the CJEU emphasised the requirement in the ‘communication to the public’ test that the platform operator plays an indispensable role, as well as the deliberate nature of its intervention to give users access to a protected work. The CJEU was satisfied that the platforms played an indispensable role, and so the key question was whether their intervention was a deliberate one or not. Whilst this has to be a case-by-case assessment and is therefore one for the German court to determine, the CJEU set out some relevant factors:
- Despite the fact it knows (or ought to know) in a general sense that its users are making copyright works available illegally on its platform, a platform refrains from putting in place the appropriate technological measures that can be expected form a reasonably diligent operator in its situation so that it can counter copyright infringements credibly and effectively.
- A platform participates in selecting copyright content illegally communicated to the public.
- A platform provides tools on its platform specifically intended for the illegal sharing of such content or it knowingly promotes such sharing (which may be evidenced by the fact that it has adopted a financial model that encourages its users to communicate copyright works illegally).
However, merely knowing in a general sense that copyright works are available illegally on its platform would not be a sufficient ground to find that a platform intervenes with the purpose of giving internet users access to that content – unless, having been warned by the right holder, it does not expeditiously take necessary measures to make the content inaccessible. Further, the fact that the platform is profit-making does not itself mean that the platform consents to its service being used to infringe copyright (and the CJEU's decision in the hyperlinking case GS Media should not be extrapolated in that way), though the profit-making nature of the intervention is a relevant factor.
The CJEU also provided some specific thoughts on whether the platforms in these cases 'credibly and effectively' countered infringements on their platforms. In the case of YouTube, it noted:
- YouTube does not intervene in the creation or selection of content by its users, which is uploaded automatically.
- It clearly informs users that they are forbidden to post content that infringes copyright.
- It has put in place technological measures to prevent and put a stop to copyright infringement on its platform – e.g., a notification button, a special alert procedure and its content verification program.
- Its approach to ranking of content is not intended to facilitate or promote illegal sharing of content.
- Whilst it derives advertising revenue, it does not appear that its financial model is based on the presence of illegal content.
As for Cyando, the CJEU noted:
- It does not create, select, view or check content uploaded to the platform.
- It informs users that they are prohibited from infringing copyright.
- When users upload content, this does not enable them to make that content directly available to the public as it can only be accessed by a download link which is sent to the user (the user may share that link, but not via the platform).
- The German Court will need to resolve the implications of a factual dispute between the parties: Elsevier argued that between 90-96% of the files uploaded contain illegal content, though Cyando argued that it was a much smaller percentage – only 1.1.% of all the files actually consulted.
The second issue main issue was whether the platforms could rely upon the 'safe harbour' exemption from liability set out in Article 14 of the E-Commerce Directive. In relation to this issue, the CJEU said that the activity of the platforms fell within that provision, provided that they did not play an active role of such as a kind as to give them knowledge or control over the content uploaded to the platform. To be prevented from relying upon Article 14 of the E-commerce Directive, an operator would have to have knowledge or awareness of specific illegal acts committed by its users relating to protected content uploaded to its platform. The knowledge requirement was not satisfied purely on the basis that the operator had a general awareness that its platform was also used to share potentially infringing content. Further, the fact that the platform operator automatically indexes content uploaded to that platform, the platform has a search function, and it recommends videos on the basis of users' profiles or preferences do not constitute 'specific' knowledge of illegal activities carried out on its platform or of illegal information stored on it.
Lastly, the CJEU confirmed that notices to platforms about protected content being illegally shared on their platforms must contain sufficient information to enable the operator of the platform to satisfy itself, without a detailed legal examination, that the communication was illegal and that removing the content would be compatible with freedom of expression.
Advocate General Opinion on Challenge to Article 17 DSM Copyright Directive
On 15 July 2021, Advocate General Saugmandsgaard Øe delivered his Opinion in relation to Poland’s challenge to the liability regime provided in Article 17 of the DSM Directive, rejecting Poland’s argument that the regime is incompatible with freedom of expression and information. The regime does, he consider, entail an interference with users’ freedom of expression, including the significant risk of ‘over-blocking’ of lawful information, heightened by the possible use of automatic content recognition tools. However, he identifies that the EU legislator has provided for sufficient safeguards within Article 17 to minimise that risk, such as recognising the right for users to make legitimate uses of copyright work relying on appropriate exceptions and limitations, and the insistence that Article 17 should not impose a general monitoring obligation on platforms. Consequently, he suggests that OCSSPs must only detect and block content that is ‘identical’ or ‘equivalent’ to a protected work identified by right holders which he described as ‘manifestly unlawful’ content in the light of information provided by right holders. However, in ambiguous situations, including for example short extracts included in in longer content, transformative works etc, the content should not be the subject of a preventive blocking measure.
The CJEU’s decision is awaited with interest, with many expecting it to reach the same conclusion as the Advocate General in terms of compatibility of the new regime with freedom of expression and information. As noted above, the UK Government has said it will not be implementing the DSM Copyright Directive into UK law but instead, at least for now, it appears to be adopting a ‘wait and see’ approach.