Copyright: communication to the public and online platform liability

Summary

Background

Infringement of copyright occurs when there is communication to the public of a copyright work (Article 3(1), Copyright Directive (2001/29/EC)) (Article 3(1)).

Hosting providers are exempt from liability for copyright infringement provided they have no actual knowledge of illegal activities and act expeditiously to disable access to infringing content, once on notice (Article 14(1), E-Commerce Directive) (Article 14(1)).

EU member states must ensure that rights holders can apply for an injunction against intermediaries whose services are used by a third party to infringe copyright (Article 8(3), Copyright Directive) (Article 8(3)).

Online content-sharing service providers must use best efforts to obtain authorisation from rights holders in respect of protected content uploaded by users and to remove any content for which authorisation is refused (Article 17, Digital Copyright Directive (2019/790/EU)) (Article 17). The Digital Copyright Directive has not been implemented by the UK.

Facts

Publisher, E, and music producer, P, issued proceedings relating to the unauthorised uploading of copyright works to Uploaded file-hosting and sharing platform, which was owned by C, and the YouTube video-sharing platform.

The German Court referred questions to the ECJ concerning the interpretation of copyright infringement by communication to the public, the exemption from liability under the E-Commerce Directive, and the availability of injunctions against intermediaries, in the context of the liability of online platform operators.

Decision

The ECJ held that the operator of a video-sharing or a file-hosting and sharing platform, on which users could illegally make protected content available to the public, was not making a communication to the public of that content under Article 3(1) unless the operator was contributing to giving access, beyond merely making the platform available.

For the purposes of Article 3(1), "contributing" means one of the following:

• The operator has specific knowledge that protected content is available illegally on its platform and refrains from expeditiously deleting it or blocking access to it.
• If, despite the fact that the operator knows or ought to know that users of its platform are making protected content available to the public illegally through its platform, it refrains from putting in place the appropriate technological measures expected from a reasonably diligent operator in its situation effectively to counter copyright infringements on the platform.
• If the operators participates in selecting protected content illegally communicated to the public, provides tools on its platform specifically intended for the illegal sharing of the content, or knowingly promotes that sharing, for example if the operator adopts a financial model that encourages users of its platform illegally to communicate protected content to the public through the platform.

Here, in both cases, potentially illegal content is uploaded to the platform not by the operator, but by users, who are responsible for their own actions and can determine whether the content they have uploaded is made available to other internet users through the platform.

In the Uploaded file-hosting and sharing platform a download link allowing access to uploaded content is communicated only to the user who uploads the file and the platform does not make it possible to share the link, and therefore the uploaded content, with other internet users via the platform. Therefore, to share the content the user must either send the download link directly to the persons to whom they wish to give access to the content, or publish the link on the internet, for example in blogs, forums or link collections.

Although the principal function of the YouTube video-sharing platform is to allow users to share videos publicly with all internet users, it also enables users to upload content privately, and therefore to choose whether and with whom they will share the content.

Therefore, users of the platforms carry out an act of communication where without the right-holders' consent, they give other internet users access through the platforms to protected works which those other internet users would not be able to enjoy without the intervention of those users. It is only if those users make the uploaded content available to the public by sharing the content with any internet user on the YouTube platform or by publishing on the internet download links giving access to the content on the Uploaded platform, that those users, and therefore the operator of the platform that is used as the intermediary for making the content available, might make a communication to the public.

Whether the role played by the operator of the platform is indispensable is not decisive. The assessment of whether the intervention is an act of communication depends both on the importance of the role that the intervention by the platform operator plays in the communication made by the platform user and on the deliberate nature of the intervention. All factors must be considered to decide whether the intervention is deliberate.

The activity of the operator of a video-sharing or file-hosting and sharing platform falls within Article 14(1), provided that 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. To be excluded from liability under the hosting exemption of Article 14(1)(a), an operator must have knowledge or awareness of specific illegal acts committed by its users relating to protected content that is uploaded to its platform.

Knowledge is not established solely because the operator is aware in a general sense that its platform is also used to share content which might infringe IP rights. The fact that the operator automatically indexes content uploaded to the platform, that the platform has a search function and that it recommends videos on the basis of users' profiles or preferences is not sufficient to conclude that the operator has specific knowledge of illegal activities carried out on the platform or of illegal information stored on it.

A notification that protected content has been illegally communicated to the public through a video-sharing platform, or a file hosting and sharing platform, must contain sufficient information to enable the operator of the platform to satisfy itself, without a detailed legal examination, that the communication is illegal and that removing the content is compatible with freedom of expression.

Determination of whether a platform is infringing is a matter for national courts, having regard to the principles set out by the ECJ.

Article 8(3) will not stop a rights holder from failing to obtain an injunction under national law against an intermediary with no knowledge of its service being used for infringement within the meaning of the hosting exemption in the E-Commerce Directive, unless ,before court proceedings were commenced, the infringement was notified to the intermediary, which failed to intervene expeditiously to remove the content or to block access to it and to ensure that the infringements did not recur. However, national courts must be satisfied that this does not delay cessation of the infringement and cause disproportionate damage to the rights holder.

Comment

The future effect of this decision for EU member states is likely to be reduced by Article 17; however Article 17 is not implemented in the UK.

Case: Peterson v Google LLC and others and Elsevier Inc v Cyando AG (C 682/18 and C 683/18.

First published in the August 2021 issue of PLC Magazine and reproduced with the kind permission of the publishers. Subscription enquiries 020 7202 1200.