Youtube and the rest of the online platform operators “do not themselves communicate to the public the contents protected by copyright illegally placed by their users, except that, beyond the mere making available to the platforms, contribute to providing the public access to such content. ” This is established by the Court of Justice of the European Union in a ruling published this Tuesday in Luxembourg.
In the litigation that gave rise to the first case reviewed by the CJEU, Frank Peterson, a music producer, sued YouTube and its legal representative Google before the German courts in relation to the publication on YouTube, in 2008, of several phonograms over which he claims to be the holder of different rights.
In the litigation that gave rise to the second case, the publisher Elsevier sued Cyando before the German courts for the publication in Uploaded, in 2013, of different works whose exclusive rights belong to Elsevier.
The Bundesgerichtshof (Supreme Civil and Criminal Court, Germany) submitted several preliminary questions to the Court of Justice in order for it to specify, among others, “the responsibility of online platform operators in relation to works protected by the rights of author that users upload to said platforms illegally “, explains the CJEU.
In its judgment, the Luxembourg-based Court considers in particular that, in the current state of Union law, “platform operators on-line do not themselves make a ‘communication to the public’ of the contents protected by copyright illegally put online by their users, unless said operators, beyond the mere making available to the platforms, contribute to providing the public access to such content violating copyright “.
On the other hand, the Court of Justice considers that these operators “can benefit from the liability exemption, provided that they do not play an active role that confers knowledge and control of the content uploaded to their platform”.
In relation to the objectives and definition of the concept of “communication to the public”, the Court of Justice highlights “the unavoidable role played by the platform operator and the deliberate nature of his intervention”. In effect, it performs an “act of communication when it intervenes, with full knowledge of the consequences of its conduct, to provide its clients with access to a protected work, especially when, without such intervention, clients would not be able to enjoy, in principle, of the broadcast work “.
In this context, the Court of Justice considers that “the operator of a video-sharing platform or a hosting and file-sharing platform, in which users can illegally make protected content available to the public, does not make a ‘communication to the public’ of these, in the sense of the European standard, unless it contributes, beyond the mere provision of the platform, to provide the public access to said content in violation of copyright. ”
This is the case, in particular, “when that operator has specific knowledge of the unlawful provision of protected content on its platform and refrains from removing it or blocking access to it promptly, or when said operator, despite knowing or you should know that, in general, users of your platform use it to illegally make protected content available to the public, it refrains from applying the appropriate technical measures that can be expected from an operator normally diligent in your situation in order to credibly and effectively combat violations of copyright on that platform, or also when it participates in the selection of protected content and illegally communicated to the public, provides on its platform tools specifically aimed at the illicit exchange of such content or knowingly promotes such exchanges, which can be evidenced by the fact that the operator has adopted an economic model that encourages users of its platform to illegally communicate protected content to the public “.
Second, the Court of Justice addresses the question whether a platform operator on-line You can benefit from the liability exemption, provided for in the European standard on electronic commerce, for the protected content that users illegally communicate to the public through its platform.
In this context, the Court considers that “this operator can avail itself of the liability exemption provided that it does not play an active role that may confer knowledge and control of the content uploaded to its platform.” For such operator to be excluded from the liability exemption “it must be aware of the specific illegal acts of its users regarding protected content that has been uploaded to its platform.”
Third, the Court of Justice specifies the requirements for rights holders to be able to obtain interim measures against platform operators on-line. And it declares that the European norm “does not preclude that, by virtue of national law, the copyright holder can only obtain precautionary measures against the operator when, before the start of the judicial procedure, that violation has been previously notified to said operator without it having intervened promptly to remove the content in question or to block access to said content and to ensure that such violations are not reproduced “.
However, “it is up to the national courts to ensure that, in its application, this requirement does not lead to the effective cessation of the infringement being delayed in such a way as to cause disproportionate damage to that owner”, states the CJEU.