In a judgment rendered on 22 June 2021, the EU Court of Justice clarified that operators of online video-sharing or file-hosting and file-sharing platforms do not make a “communication to the public” in the meaning of article 3(1) of the InfoSoc Directive (Directive 2001/29) when merely making a platform available on which videos or files containing copyright-protected content are made publicly accessible by users without the consent of the rightsholders. The Court explained that for the platform to be held liable, the platform must contribute, beyond merely making that platform available, to giving access to such illegal content to the public.
The Court of Justice rendered this new ruling after referrals made by Germany’s Bundesgerichtshof (Federal Court of Justice) in two different cases.
The protagonists of the first underlying case are, on the one hand, Frank Peterson, a music producer and, on the other, YouTube (and its legal representative Google). The protagonists of the second underlying case are the international publisher Elsevier and the file-hosting and file-sharing platform Uploaded, operated by Cyando. In these cases, the users of those platforms shared copyright-protected works owned by Mr Peterson and Elsevier without their permission. The referring courts asked the Court of Justice whether these platforms, enabling the online publication of the litigious works, could be held liable for copyright infringement.
It is important to note that the Court of Justice first emphasised that the interpretation provided by the Court does not concern Article 17 of the DSM Directive (Directive 2019/790). This legal regime came into force subsequent to the facts at hand and enshrines a new specific liability regime in respect of works illegally posted online by users of online content-sharing service providers such as YouTube.
The first question examined by the Court of Justice concerned the role of content-sharing platforms in the performance of copyright restricted acts: does the operator of an online sharing platform, on which users can illegally make protected content available to the public, itself make a “communication to the public” of that content?
The Court explained that, for the platform to be held liable for copyright infringement, both the indispensable role played by the platform and the deliberate nature of its intervention must be taken into account. The latter criterion, i.e. the intervention in full knowledge of the illegal nature of the content made available on its platform, is a key indicator that content sharing platform operators make a “communication to the public”, infringing the rights of the rightsholder. The Court of Justice referred to the case Stichting Brein (C-610/15) in which it held that the making available and managing of the online file-sharing platform The Pirate Bay constituted a communication to the public, taking into account the fact that its operators “had intervened in full knowledge of the consequences of their conduct, to provide access to protected works, that they had made explicit, on blogs and forums available on that platform, their purpose of making protected works available to users, and that they had encouraged the latter to make copies of those works”.
The Court of Justice therefore concluded that a concrete analysis of the circumstances of the case needed to be undertaken in order to determine the deliberate nature of the intervention of the platform operators in the illegal communication of protected content. In that regard, relevant factors include the facts (i) that an operator refrains from putting in place appropriate technological measures, (ii) that that operator participates in selecting protected content illegally communicated to the public, and (iii) that it provides tools on its platform specifically intended for the illegal sharing of content or that it knowingly promotes such sharing.
The second question examined by the Court of Justice concerned the application of the “safe harbour” mechanism enshrined in Article 14 of the e-Commerce Directive (Directive 2000/31). The Court of Justice noted that the exemption of liability is only applicable to intermediary service providers, meaning that the nature of the activity provided is merely technical, automatic and passive. It necessarily implies that the service provider, in order to be qualified as a mere intermediary, cannot have any knowledge or control over the stored content.
Therefore, if the platform operator contributes, beyond merely providing its platform, to giving the public access to protected content in breach of copyright (and hereby performs an act of communication to the public), the operator concerned will be ineligible to rely on the exemption from liability provided for in Article 14 of the e-Commerce Directive. If, on the other hand, 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, its activity falls within the scope of Article 14. In that regard, the Court noted that the fact that the operator automatically indexes content uploaded to the platform, that that platform has a search function and that it recommends videos on the basis of users’ profiles or preferences is not a sufficient ground for the conclusion that that operator has “specific” knowledge of illegal activities carried out on that platform or of illegal information stored on it.
Please contact Karel Janssens for further information and/or for general legal advice relating to online platforms.