Phew!Tube: The Great (Liability) Escape – The ECJ Rules YouTube Are Not To Blame For Copyright Infringements

Cases of illegal online video uploads, be it on YouTube or other media platforms, are a dime a dozen. In this new developing digital age, the legalities of online copyright are still being teased out in real time, right before our eyes.

After a lengthy legal battle between Europe’s creative industry and online media platforms, the European Court of Justice (ECJ) recently laid down a landmark ruling in favour YouTube.

The verdict: the media giant and other such platforms cannot be held legally liable for the upload of copyright-infringing content on its platform – with exceptions.

The case marks a victorious win for YouTube who have long scuffled with musicians, artists, and content creators on the question of fair compensation for uploaded work and responsibilty for intellectual property infringements.

The media-monsters were threatened with a hefty compensation pay-out for unjust enrichment, among other grounds, should they have lost the case – expanding into the multi-millions (gasp!). However, YouTube’s case prevailed, stimulating a historic precedent in the world of online intellectual property – clarifying issues of copyright, host-provider liability and defining exactly where these platforms stand when it comes the facilitation of illegal content online.

Let’s break it down. 

Facts of the Case: The Joined Cases of C-682/18 Youtube and C-683/18 Cyando:

The ECJ ruling follows from the German Federal Court of Justice’s (BGH) request for consultation on two cases that concerned video copyright law, which the ECJ jointly ruled upon on June 22nd.

This decision also comes on the back of the EU Copyright reforms last year, which included the adoption of the infamous “article 17” that seeks to oblige online platforms like YouTube, Vimeo, and TikTok (the list goes on) to proactively prohibit users from illegally uploading copyright protected works.*

*However, these reforms are not applicable to the cases before us, as these cases occurred before the adoption of the reforms within the new Digital Single Market Directive 2019/790 (DSM Directive) in 2019. Because the new Directive and its amendments were adopted post-Brexit, they will have no effect on the UK. The directives in place at the time that these cases were lodged are the directives that apply. As these cases were lodged pre-Brexit, the ruling and judgement of these cases is therefore relevant to any copyright cases or claims of the same nature that occurred before UK left the EU.

Although these cases are more than a decade old and only coming before the ECJ now (this speaks to the length of litigation!), the power and influence in these rulings is utterly indispensable to the realm of intellectual property law, particularly online copyright. 

The Cases: A Summary:

C-682/18 Youtube:

YouTube found itself in the docks after a German music producer, Frank Peterson, took YouTube & Google to court in 2008 over a dispute surrounding the use of his copyrighted-music content by other users on YouTube. Though YouTube initially complied with his request for the content to be removed, his music re-emerged on the platform a several days later and Peterson was not happy camper. This instigated Peterson’s request for an injunction against the videos along with disclosure of the individual uploaders’ information and the demand of damages. 

C-683/18 Cyando:

Here, publishing group Elsevier pursued litigation against Cyando (the company behind the file-hosting service “Uploaded”) through the German Courts after Cyando users uploaded various copyrighted works on belonging to Elsevier on the “Uploaded” platform without its permission in 2013. 

As both cases concerned similar questions regarding video-copyright laws, the ECJ joined the two cases and ruled on them together. Killing two birds with the one stone, as you would say! 

The Big Legal Questions:

All image rights belong to According To A Law Student (ATALS).

QUESTION 1: No “Communication to the Public” = No liability upon YouTube

The BGH’s first question in the referral put forward to the ECJ was whether the platform operator (ie: YouTube) performs an act of communication to the public within the scope of Article 3(1) of the EU Copyright Directive (aka: Infosoc Directive 2001/29) through providing a platform for copyrighted content to be uploaded illegally. 

What is a “communication to the public”?

While the Copyright Directive doesn’t expressly define “communication to the public”, the Court of Justice of the European Union (CJEU) stated in Reha Case C-117/15 that it must be understood broadly, and there must be

  1. an “act of communication” of a work, that
  2. is expressed to the “public”.

Any interpretation of the term must also be understood in a way that ensures a high level of protection for right-holders, which is one of the Copyrights Directive’s main objectives.

The findings: Why YouTube, and other such platforms, do not make a “communication with the public:

The Attorney General’s 2020 Opinion urged the ECJ to find that the platform-operators, like YouTube, do not in principle perform acts of “communication to the public” within Article 3(1)’s scope, and are therefore not directly liable for a breach of the article when their users illegally upload protected works online. The ECJ ultimately followed this opinion. 

But why, you ask?

Well, as the AG argued, communication to the public should include an active act executed with the intention to circulate a work to the public. As only YouTube’s users hold that intention, it is them whom should have direct liability under the Copyright Directives Article 3(1). Additionally, such online platforms are just that… mere platforms. They only facilitate acts of communication to the public, as opposed to communicating to the public themselves. This means that these platforms, like YouTube, should only have secondary liability for copyright breaches on alternative grounds like under criminal law or law of torts, which are legislated at domestic level by member states. 

The ECJ concurred with this, finding that because videos are uploaded automatically to YouTube, YouTube has no awareness or knowledge that copyright-breaching works are being uploaded for the public to see. Such an awareness is not presumed until they are notified by the right-holder. Users are also warned in the terms of service upon signing up to the platform and during the actual uploading of the video that they cannot upload copyright-infringing content via YouTube. Furthermore, the platform also provides tools through which copyright-holders can report against such breaches (next time you’re falling down a YouTube rabbit hole, look for the “report” button which includes an “infringes my rights” tool!). This stood to YouTube’s advantage. 

Therefore, YouTube makes it first great escape from liability by being deemed as making no communication to the public through facilitating the upload of copyright infringing content. 

However, there is always a catch, isn’t there?

The Caveats:

While online platform-operators, in principle, are not seen to make a communication with the public of illegally uploaded copyright-protected works, this can be rebutted. 

Platform-operators like YouTube can make such a communication infringing copyright where they do more than simply make those platforms available to users, or increase or contribute to the availability of the illegal uploads to the public. This is particularly applicable where the platform-operator has “concrete” knowledge of the breach, and fails to immediately remove, delete, or block access to the copyright-infringing content. 

Furthermore, where the platform fails to take adequate technical measures to target copyright infringement, such as providing site tools to report intellectual property breaches and unlawful sharing of copyrighted content, this may also expose the operator to liability under this heading. 

In YouTube’s case, they were deemed to have no “concrete” knowledge or awareness of the illegal uploads. Why?Well, the fact that they their site generates automated content recommendations based on users’ profile, preferences, and previous videos (like when another eyeliner tutorial video suspiciously pops up in your recommended videos after just watching one – lol!) and the fact that YouTube simply provided a platform to share video content, was not enough to deem them to have such knowledge. This sets a relatively clear bar for platform operators to adhere to, and reinforces the notion that to avoid liability simply do your job and upload the content – and nothing more. 

Nevertheless, the law now states that where a platform contributes to access of illegally uploaded content either by action or omission, the presumption that such platform-operators do not make a communication to the public may be rebutted. This threatens to expose them to liability. But, where there is no communication to the public by the platform operator, there is no liability. Easy peasy!

QUESTION 2: The Hosting Privilege:

The second question in the ECJ referral concerned the scope of the EU E-Commerce Directive 2000/31’s article 14 (AKA: the “hosting privilege” article). Hosting Privilege refers to the exemption from liability that a platform operator, or a “host” (aka: YouTube, TikTok, Twitter) enjoys from the upload of copyright-infringing content by its users. This allows host platform operators to avoid being sued by copyright-holders by separating itself from copyright-infringing uploads.

Article 14 declares that host providers, like YouTube, are not liable if the provider

(a) does not hold “actual knowledge” of illegal activity or unlawful information in circulation on its platform, or (b) upon gaining such knowledge/awareness of the illegal conduct, acts promptly to delete, remove, or prevent access to the illegal content or information. 

Once a platform meets these requirements, they’re perfectly entitled to say, “not my problem!” to any copyright-holder claims. It’s now the uploading users’ issue.

The BGH asked the ECJ: Do the platforms in question (YouTube and Cyando) come within article 14’s scope? And if so, what level of knowledge is needed for a platform to “lose” the liability privilege under article 14(a)?

The Findings: The great escape (from liability) continues where platforms lacked knowledge:

First off, a fundamental factor of the hosting privilege is that the platform must remain as a neutral service provider, simply doing its job and processing the upload of users’ data. To enjoy hosting privilege, it cannot play “active” part in making the illegal content available, as this would likely attach knowledge and control over the content to the platform and thus, liability, confirmed by the CJEU in L’Oreal v eBayAs the ECJ ruled in YouTube’s case, platforms must have no involvement with the information transmitted on its platform to enjoy hosting privilege.

What is an “active” role?

In this context, playing an active role would mean having knowledge of or control over the information uploaded, stored, or transmitted on their platform, that is copyright-infringing.

An active role is opposite to E-Commerce Directives principle of mere conduit which states that when acting in mere conduit (basically meaning passive conduct), platform operators have no legal liability for the consequences of online traffic on their networks. But once a platform acts outside of mere conduit and takes an active role, liability may then be attached.

Answering the BHGs article 14 questions, the ECJ responded that to benefit from the privilege the platform-operator/service provider must:

  • Ensure its activity as a service provider is of a merely technical, automatic, and passive nature: This necessitates that the platform has no knowledge of or control over the information uploaded, and so cannot be liable. Basically, the platform must simply do its’ job of uploading, storing, or transmitting users’ data – and that’s it. 
  • Be in no way involved with the information/data: The platform can enjoy the hosting privilege so long as it doesn’t interfere with the data by modifying it or altering it in any way. (this doesn’t include unimpactful technical modifications that occur in order to upload the information). Put simply, upload and don’t touch it!
  • Ensure there is no deliberate collaboration with the uploaders of illegal information: If such platforms do deliberately collaborate with the infringing user, they are seen as going beyond the activities of “mere conduit”. This means they are considered as directly participating in the illegal conduct and therefore, lose the privilege. 
  • Act fast and efficiently when they do gain knowledge or awareness of the illegality: Once the information platform is made aware of the copyright-infringing content on its site, it must quickly work to remove or disable access to the content in question if it wishes to continue to benefit from the hosting privilege. However, interestingly, removing the content must be considered against the freedom of expression and processes governing this principle at domestic level – of which member states are free to individually decide. So, before a platform removes an unlawfully uploaded work, it must balance the decision against both copyright holders’ intellectual property rights and the uploading users’ freedom of expression, in accordance with the relevant member states national law on the topic.

In short, (prepare for a terrible pun) platform operators will lose this liability exemption where they knew(Tube) about the illegality. If they knew, you can probably sue!

Why the Decision Matters Today:

The judgment is still a powerful precedent in the realm of intellectual property law, and not just as a historical win for platform operators.

Under the new DSM Directive’s Article 17, direct liability only applies to a portion of online platform operators because its scope is limited to online-content sharing service providers. So, liability under the Article 3(1) of the Copyright Directive 2001/29 is still relevant to any platforms that fall outside of this limited definition. 

For Cyando, this decision will have a direct effect as “uploaded” is probably not, by definition, an online-content sharing service provider (OCSSPs). This means Article 3(1) and its interpretation applies to Cyando

In contrast, YouTube is most definitely an OCSSP. On face value, it would therefore look like the new DSM Directives Article 17 is what applies to them, rather than Article 3(1). However, there is a case before the CJEU at the minute regarding Article 17’s compatibility with the EU Charter of Fundamental Rights (case C-401/19). Should Article 17 be found in any way incompatible with the Charter, the liability of platform operators under it could be abolished or considered void. If this were to happen, Copyright Directive 2001/29’s general liability rules under Article 3(1) would apply to YouTube and other OCSSPs. So, it’s very clear that this ruling still holds great importance for online platforms and the development of copyright law.

So…What Now?

If such platforms fail to take requisite measures as described above, they can still nonetheless be held liable. While this ruling is a great win for YouTube and other such service providers, the “communication to the public” presumption is rebuttable, and these hosts do not enjoy a limitless liability exemption. The exact conditions in which they may be held liable and lose hosting privilege will depend on the domestic member state’s laws and standards. Additionally, injunctions against platform operators are still pursuable. So, such service providers like YouTube still need to be careful and copyright-conscious of the content being uploaded to their site, though the pressure has eased a bit thanks to the clarity the ruling has provided for these platforms.

Moving forward, it is now a job for the German Courts in interpreting the ECJ’s judgement, though their declarations are relatively clear. However, the effect of this judgement is a little limited, as it rules on circumstances that occurred before the 2019 EU Copyright reform movement (though Covid has delayed the implementation of these updates within several member states). Nevertheless, it still forms a powerful precedent in the world of online platforms, digital content and copyright conundrums – and one that YouTube will be saying Phew!(Tube) to. 

But what sort of impact does the ruling have upon the illegally-uploading users within the EU, if any?

It clearly places a stronger, more defined responsibilty upon platform operators to monitor and police the illegal upload of copyright-protected material. But does this enhanced responsibilty upon platforms like YouTube, Facebook and Instagram do much to deter the individual uploader? When you pair this ruling with Case C-264/19 Constantin Film v YouTube, which heightened the protection of the individual uploader by ruling YouTube can only reveal such an infringers postal address and not their IP address, email or phone number, the question arises: what about the actual individual infringer? Are they being overly protected? One wonders.

Chantelle is a recent BCL graduate from the National University of Ireland Galway, and is currently undertaking a Masters of Law. Chantelle has a keen interest in intellectual property law, international business & human rights, and international public law. Chantelle intends to pursue her professional solicitor qualifications and has aspirations to work internationally in the field of business and human rights. 


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