At the current state of EU law the operator of a video-sharing platform or a file-hosting and ‑sharing platform, on which users can illegally make protected content available to the public, does not make a ‘communication to the public’ of that content: users perform ‘act of communication’ now that they act autonomously and are responsible for their own actions, the mere fact that the use of a platform is necessary in order for the public to be able to access the work is not sufficient to assume that the operator of the online platform performs an ‘act of communication’, the operator does, however, communicate this content to the public in violation of copyright if it does not merely make the platform available, but also intervenes with full knowledge of the consequences of doing so, with the aim of giving the public access to the protected works, deliberate character of intervention can appear from not 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, the mere fact that the operator knows that protected content is made available illegally on its platform is not sufficient ground to conclude that it intervenes with the purpose of giving internet users access to that content, unless that operator, despite having been warned by the rightholder refrains from expeditiously taking the measures necessary to make that content inaccessible, aim of making profit is not a decisive circumstance.The operator can invoke the liability exemption laid down in Article 14(1) of the Directive on Electronic Commerce if he 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: for such an operator to be excluded it must have knowledge of or awareness of specific illegal acts committed by its users relating to protected content. Article 8(3) of the Copyright Directive does not preclude that a copyright holder or holder of a related right may not obtain an injunction against an intermediary whose service has been used by a third party to infringe his or her right, that intermediary having had no knowledge or awareness of that infringement, unless, before court proceedings are commenced, that infringement has first been notified to that intermediary and the latter has failed to intervene expeditiously in order to remove the content to ensure that such infringements do not recur: in the absence of such a condition, such an operator would be required to actively to monitor all the content uploaded by users of that platform in order to prevent infringements of that type and to avoid being the subject of an injunction and being exposed to those costs on account of those infringements, such a condition is compatible with Article 15(1) of the Directive on Electronic Commerce.
From the press release: In the dispute giving rise to the first case (C-682/18), Frank Peterson, a music producer, is bringing an action against YouTube and its legal representative Google before the German courts in respect of the posting online, on YouTube, in 2008, of a number of recordings over which he claims to hold various rights. Those recordings were posted by users of that platform without his permission. They are songs from the album A Winter Symphony by Sarah Brightman and private audio recordings made during concerts on her ‘Symphony Tour’.
In the dispute giving rise to the second case (C-683/18), the publisher Elsevier is bringing an action against Cyando before the German courts in respect of the posting online, on the Uploaded filehosting and -sharing platform, in 2013, of various works over which Elsevier holds exclusive rights. Those works were posted by users of that platform without its permission. They are Gray’s Anatomy for Students, Atlas of Human Anatomy and Campbell-Walsh Urology, which could be consulted on Uploaded via the link collections rehabgate.com, avaxhome.ws and bookarchive.ws.
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In the first place, the Court examines the question whether the operator of a video-sharing platform or a file-hosting and -sharing platform on which users can illegally make protected content available to the public itself carries out, in circumstances such as those at issue in the present cases, a ‘communication to the public’ of that content within the meaning of Directive 2001/29. [...]
In the second place, the Court looks at the question whether the operator of online platforms may benefit from the exemption from liability, provided for in Directive 2000/31 on electronic commerce, 6 in respect of protected content which users illegally communicate to the public via its platform. In that context, the Court examines whether the role played by that operator is neutral, that is to say, whether its conduct is merely technical, automatic and passive, which means that it has no knowledge of or control over the content it stores, or whether, on the contrary, that operator plays an active role that gives it knowledge of or control over that content. [...]
In the third place, the Court clarifies the circumstances in which, under Directive 2001/29, rightholders can obtain injunctions against operators of online platforms. It finds that that directive does not preclude a situation under national law whereby a copyright holder or the holder of a related right may not obtain an injunction against an operator whose service has been used by a third party to infringe his or her right, that operator having had no knowledge or awareness of that infringement, within the meaning of Directive 2000/31, unless, before court proceedings are commenced, that infringement has first been notified to that operator and the latter has failed to intervene expeditiously in order to remove the content in question or to block access to it and to ensure that such infringements do not recur.
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Read the full press release here.
