Copyright: Online platform operators’ liability for users illegally uploading copyright material

C-682/18 Frank Peterson v Google LLC and others and C 683/18 Elsevier Inc. v Cyando AG EU:C:2020:586 – A-G opinion

The question

Are online platform operators liable for users’ uploading of material that infringes copyright?

The key takeaway

Online platform operators should not be directly liable for users illegally uploading material that infringes copyright works, according to the opinion of Advocate General Saugmandsgaard Øe.
However, he also indicated that rightsholders should be able to obtain injunctions against those operators (eg to remove infringing content) under EU law. 

The background

The German Federal Court of Justice referred two sets of proceedings to the CJEU, namely:

• YouTube – a claim brought by music producer Frank Peterson against YouTube in relation to various Sarah Brightman songs uploaded to YouTube by users without permission; and
• Cyando – a claim brought by publishing group Elsevier against Cyando, the company behind cyberlocker “Uploaded”, concerning various copyright works that had been uploaded to Uploaded by users without permission. 

The German Federal Court of Justice asked the CJEU to decide whether online platform operators making user-uploaded content available to the public meant that the online platform operators themselves were performing an act of “communication to the public” and therefore infringing copyright.

The decision

The AG has advised the CJEU to rule that the online platform operators themselves do not carry out an act of “communication to the public” as the role of the platforms is that of an intermediary – they are simply providing the physical facilities that enable users to carry out a “communication to the public”. The process of a user uploading content is automated and does not involve the platform determining or selecting the content that is ultimately published.

As such, the liability is borne by the users who upload the content. 

Further, the hosting exemption under Article 14 of the e Commercial Directive (Directive 2000/31/EC) would, in principle, be available to these online platform operators in any event, as long as they did not play an “active role” which would give them “knowledge of or control over” the information in question. 

The AG also considered the impact on rightsholders, proposing that the CJEU rule that rightsholders can still obtain injunctions against the online platform operators that impose obligations on them, eg the requirement to remove content. The rightsholders should be able to obtain such injunctions by establishing that their rights were infringed, without the need to show improper conduct by the intermediary.

Why is this important?

Although the AG’s opinion is not binding and the CJEU may depart from it, this opinion seeks to balance the rights of the online platform operators and rightsholders. - suggesting that online platform operators should not be directly liable for users’ actions in uploading content.

Any practical tips?

The AG’s opinion will be welcome to online platform operators and they will hope that the CJEU will concur when it issues its decision in due course. 

Nevertheless, the online operators still need to keep the EU Copyright Directive (2019/790) in mind. The Directive seeks to introduce an obligation on operators to obtain authorization from rightsholders for works uploaded by users. 

This may not affect the position in the UK (the UK Government has said that it is not required to implement the Directive and does not plan to do so), but such provisions may be implemented across the EU. 

Autumn 2020