On 22 June 2021, the European Court of Justice (ECJ) ruled that the video sharing platform YouTube and a file hosting and sharing platform are not liable for user uploaded copyright infringement.1 Importantly, the two decisions are putting an end to the debate regarding whether online platforms subjected to the safe harbour rules in the E-Commerce Directive commit an act of communication to the public, by confirming that, unless they “contribute, beyond merely making that platform available, to giving access to such content to the public”, they do not.
This decision runs contrary to another theory, according to which online platforms subjected to the safe harbour rules in the E-Commerce Directive were engaging in acts of communication to the public, which were subsequently rendered ineffective by the terms of the E-Commerce Directive. This theory led a number of commentators (including Reed Smith) to suggest that article 17 2 merely “removed the shield” of the E-Commerce Directive’s hosting exemption to replace it with a principle of full liability. The ECJ decided otherwise and it is now clear that article 17 does not confirm the existence of a ‘suppressed’ copyright-relevant act; instead, it creates a new scenario for the existence of the right to be discovered.
The two cases that were referred to the ECJ were: Frank Peterson v. Google LLC and YouTube LLC (Case C-682/18), and Elsevier Inc. v. Cyando AG (Case C-683/18). Both cases concerned several alleged infringements of intellectual property rights controlled by Frank Peterson and Elsevier on the YouTube platform and the file hosting and sharing platform Cyando, respectively.
In this client alert, we consider the key issues discussed by the ECJ and highlight important points for user-upload and content platform services to consider.
In the YouTube case, record producer Frank Peterson brought a copyright infringement action against YouTube in relation to works uploaded onto YouTube of the performer Sarah Brightman. Mr Peterson contacted Google Germany about these infringements, which in turn contacted YouTube to take the content down. YouTube found the videos in question and blocked access to them. However, similar or identical infringing content was found on YouTube again only a week or so later.
Consequently, Mr Peterson commenced proceedings and sought an injunction, disclosure of information and a declaration from YouTube that the company was liable to pay damages. The case went to the Federal Court of Justice in Germany, which eventually referred several questions to the ECJ on the interpretation of certain articles of EU Directives that were relevant in determining the liability of the defendants.
The facts of Cyando are similar to the YouTube case: Elsevier is an international publisher which holds exclusive rights to the works which were subject to the action. Cyando is a site on which users can freely upload content, as well as download content uploaded by other users. Elsevier applied for an injunction over three works in respect of which the company owned exclusive rights, which had been uploaded to Cyando’s platform without Elsevier’s permission.
The questions referred to the ECJ in Cyando were very similar to those in the YouTube case (described in detail below).