CJEU rules YouTube not liable for users’ uploads

The ruling refers to two cases from the years 2008 and 2013 - in the meantime, the legal situation has changed. But the CJEU had to examine the cases on the basis of the legal situation that existed at the time. "The CJEU had to rule still on the basis of the 'old' law," said Dr Nils Rauer, copyright expert at Pinsent Masons, the law firm behind Out-Law. "Nevertheless, the judgment is still of relevance."

In the first case, a music producer from Hamburg had sued because private concert recordings and tracks from albums he had produced had been uploaded to YouTube. In the second case, a publisher had sued because his medical books had been uploaded to another platform without his permission.

Germany’s Federal Court of Justice had referred both cases to the CJEU for a preliminary ruling, as they affected EU law. Among other things, it wanted the CJEU to clarify the extent to which the operators of internet platforms are liable if copyright-protected works are uploaded by users to their platforms without authorisation. The CJEU was asked to decide whether the platform operators, by enabling users to upload, are performing an act of "communication to the public" that violates copyright law.

As EU law stood at the time when the two infringements took place, "operators of online platforms do not themselves make a communication to the public of copyright-protected content illegally posted online by users of those platforms unless those operators contribute, beyond merely making those platforms available, to giving access to such content to the public in breach of copyright," the CJEU said. It also found that such operators may benefit from exemption from liability "unless they play an active role of such a kind as to give them knowledge of or control over the content uploaded to their platform".

This meant that platform operators used to be in general not responsible for copyright infringements by their users as long as they did not know or could not know that illegal content was uploaded on their websites. However, as soon as they became aware of a copyright infringement, they had to delete or block the illegally uploaded content.

"The CJEU's ruling is consistent with the CJEU's earlier approach: The core question is and remains whether the platform is in a rather passive role and thus not liable or in an active role and thus liable. There is a fine line between those two roles and is closely related to knowledge of offending content or potential knowledge that one's own platform is being used for offending purposes," said Dr. Rauer.

The CJEU said that a platform can be liable if it fails to put 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".

"Platforms like YouTube have such mechanisms in place. However, platforms that systematically tolerate illegal content on their websites usually refrain from implementing such technical measures. So, an active role can also be assumed when an operator fails to become active and to create an environment that is technically capable and suitable to eliminate illegal content uploaded by the users", Rauer said.

However, a new EU Copyright Directive is now in force and with it new rules for the liability of platforms.  "Article 17 of the DSM Copyright Directive has somewhat changed the game," Rauer said. "This provision had to be implemented in domestic law by 7 June 2021. Many member states have done so by now."

In Germany, the new Copyright Directive was recently transposed into national law, and the new rules will come into force at the beginning of August. Platforms will then be liable for content uploaded by their users. Under a best-effort approach, platforms must seek licences for this content from the authors themselves or other representative rights holders such as copyright collection societies. If a rights holder requires it, they must in principle prevent his works from being uploaded - for example, by means of so-called upload filters.

"The limit of these duties of conduct is always the principle of proportionality, which must be observed in individual cases. It may be necessary for each service provider to draw the line individually, taking into account the available technology," Rauer said.

Despite these changes, the CJEU ruling will still be relevant in the future, said Rauer, as not every platform meets the criteria to be considered "online content sharing service providers" (OCSSPs) and thus be covered by the new Article 17 of the Copyright Directive. Among others, non-profit online encyclopaedias and certain types of cloud services are excluded. For such platforms, the ‘old’ copyright law continues to apply, and thus the CJEU ruling.

"For those platforms, the question whether or not an active role is to be assumed, is still of relevance. With the new ruling, the domestic courts will be able to build on more guidance from Luxembourg where to draw the line", said Rauer. "If we ask ourselves whether this ruling decided the matter 'once and for all', the answer must be no. It forms guidance for those cases that will not fall within the scope of Article 17 of the DSM Copyright Directive. As such, the ruling is welcome. ”

"Due to the different rules for Non-OCSSPs and OCSSPs, a core task in future will be to get the separation right. Platforms need to be sure about where they belong and which of the two concepts they need to adhere to,” he said.