The contents of the article refer to a judgement issued by the Grand Chamber of the Court of the European Court of Justice dated 22nd of June 2021. The judgment embraces two separate cases dealing with two video-sharing platforms:
- Case C-682/18: Frank Peterson vs. Google LLC;
- Case C-683/18: Elsevier Inc. vs. Cyando AG.
In short, the facts of case 682/18 refer to the plaintiff Mr. Peterson suing Google (You Tube) for hosting and permitting the trade, on a peer-to-peer basis, of audio-visual material consisting of live performances of Sarah Brightman as well as works taken from the album “A Winter Symphony”, the copyrights of which belong to Mr. Peterson.
In case 683/18, the plaintiff is an international specialist publisher holding the exclusive rights to use the works at issue. The defendant, “Cyando AG” operates an “uploaded” file-hosting and sharing platform, offering all internet users, free of charge, storage space for uploading files regardless of content. The uploading happens automatically without the material being seen or monitored in advance by Cyando. Each time a file is uploaded (anonymously), Cyando automatically creates a download link which allows direct access to the file concerned and automatically sends that link to the user who uploaded it.
The four questions brought up by the German Federal Court of Justice in the respective cases are jointly analysed in this judgement as follows:
1) As for the first question: does the operation of a video-sharing platform containing copyright-protected contents for public access, without the consent of the rightholders, carry out an act of communication within the meaning of Article 3(1) of the Copyright Directive, under the conditions of the two respective cases?
Pursuant to Article 3 (1), Member States are to provide authors with the exclusive right to authorise or prohibit any communication to the public of their works, including the making available to the public of their works. Thus, they are entitled to intervene in order to prevent or prohibit actions of unconsented communication to the public (Case C-392/19 “Bild vs Kunst”)..
Ascertaining whether there is a communication act or not requires the existence of two cumulative criteria:
(a) there must be an act of communication of a work; and
(b) the case must be analysed on an individual basis.
Other complementary criteria include the role of the platform, in so far as the platform makes an act of communication when it intervenes, in full knowledge of the consequences of its action, to give its customers access to a protected work, particularly where without that intervention, users would not be able to enjoy the broadcast work (Case 610/15 “Stichting Brein”).
The judgment goes on to say that the operator of such a platform does actually play a role that is indispensable when its users make potentially illegal content available. Otherwise, it would not be possible, or in the worst case, would be more complex to freely share that content. Nevertheless, this is not the only criterion to be taken into account when concluding whether an act of communication has taken place, given that it must be interacted with other criteria. These other criteria include the putting in place of appropriate technology to counter copyright infringements on the platform; the participation in the selection of protected content illegally communicated; providing tools intended to allow the illegal sharing of such content; or promoting such sharing knowingly.
Moreover, the fact of hosting copyright infringing works does not automatically lead to liabilities where the operator of the platform does not know specifically what protected content is uploaded and does not contribute to giving the public access to such content.
In Case 682/18, the fact is that You Tube does not intervene in the creation or selection of the uploaded content and does not view or monitor that content before it is uploaded, conversely, it is done automatically. It also takes measures to alert and prevent users from uploading protected content in breach of copyrights. Likewise, it has put in place technological measures to prevent and put an end to copyright infringements on its platform. Finally, the business model does not seem to be aimed at encouraging users to upload such content or that its principal use is the illegal sharing of protected content.
In Case 683/18, it is apparent that Cyando does not create, select, view or check content uploaded to its platform, and rather, it informs users that uploading infringing copyright material is prohibited. Furthermore, it does not provide tools specifically intended to facilitate the illegal sharing on its platform and does not provide for a tool that enables other internet users to know what content is stored on that platform or to access it.
As a result of the foregoing, the Court concluded that the operator of a video-sharing platform of 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 unless it contributes, beyond merely making that platform available, to giving access to such content to the public in breach of copyright. This communication happens, for instance, where the operator has specific knowledge that protected content is available illegally on its platform and refrains from immediately deleting it or blocking the access to it; or where it refrains from putting in place the appropriate technological measures in order to counter, credibly and effectively, copyright infringements on the platform; or where it participates in selecting protected content; or provides tools for the illegal sharing of such content, or knowingly promotes such sharing, which may be attested by the fact that the business model of the operator encourages users illegally to communicate protected content to the public via that platform.
2) The second and third questions addressed by the Court were related and consisted – in substance – of asking whether in the event of concluding that there has not been an act of “communication to the public”, the activity of the operator is excluded from the exemption from liability provided by Article 14 of the Directive on Electronic Commerce.
The general principle is that exempted platforms are only those whose activity is of a mere technical, automatic and passive nature, where it has neither knowledge of nor control over the information which is transmitted or stored (Case C-236/08, paragraphs 11 and 113); in other words, the operator plays a passive role. Likewise, in accordance with Art. 15 (1) of the Directive on Electronic Commerce, the operator cannot be subject to a general obligation to monitor the information which it transmits or stores or to a general obligation to actively look for facts or circumstances indicating illegal activity. Consistently, the mere fact of hosting or admitting the upload of copyright infringing contents does not –per se– lead to the conclusion that the operator falls out of the exemption provided in Article 14. The Court adds that the automatic indexing of uploaded content, the existence of a search function and the recommending of videos on the basis of users’ profiles are not sufficient grounds for the conclusion that the operator has specific knowledge of illegal activities on its platform. On the other hand, in order to avoid liabilities, the operatormust promptly act to block or delete infringing contents upon notification of the interested party; yet, such notification must contain sufficient information to enable the operator to satisfy itself, without a detailed legal examination, that the reported contents are protected and being broadcasted illegally.
3) The fourth question is whether in the event of there not being a case of communication to the public of illegal content, it is compatible with Art. 8(3) of the Copyright Directive, to apply Member State rules or procedures for the removal of illegal information or the disabling of access to such information.
The judgement declares that in order for said rules and injunctions to be applicable they must be firstly compatible with the Copyright Directive (Case C-494/15) and cannot undermine the provisions of the Directive on Electronic Commerce. The practical consequence of that assertion is that if said condition is met, then the national rules are compatible, but all the same, it implies that that before starting the court proceedings seeking the injunction, the rightholder must address the operator and summon them to bring the infringement to an end expeditiously (by removing or blocking the access to infringing contents), and to prevent recurrence, whilst alerting of their right – and/or intention- to apply for said injunction to be issued against the same operator, where the latter does not fulfil its obligations set out in the above referred Art. 8 (3). The judgment clarifies that it is for the national courts to satisfy themselves, when applying such a condition, that the condition does not result in the actual cessation of the infringement being delayed in such a way as to cause disproportionate damage to the rightholder.
Eduardo Vilá
Vilá Abogados
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8th of October 2021
