Responsibility of online platforms and the regressive opinion of the Advocate General
A comment on the opinion of the Advocate General in joined cases Youtube (C-682/18) and Cyando (C‑683/18)
In December, the CJEU is expected to deliver its judgement in the joined cases Youtube and Cyando, where questions regarding the liability of platforms for user uploaded materials have been referred to the Court. As the judgement is likely to affect the level of protection for copyright, we have analysed the opinion of the Advocate General and the potential effects should the Court rule as suggested in the opinion.
The case before the CJEU
To shortly summarize the circumstances of the two cases, Case C-682/18 concerns the music producer Frank Peterson initiating actions against Youtube and its parent company Google. Youtube users had without authorization uploaded several phonograms to which Frank Petersen claims he has rights. In Case C‑683/18, the publishing group Elsevier is suing Cyando for copyright infringement. Elsevier claims that various works in which Elsevier holds the exclusive rights has been uploaded by users on the cyberlocker platform Uploaded provided by Cyando. The German Federal Court of Justice referred several questions relating to the liability of user-uploaded content platforms such as Youtube and so-called cyberlockers such as Uploaded, concerning copyright protected works being uploaded to the platforms.
The questions referred concerns inter alia whether the platforms perform acts of communication to the public under Article 3(1) of Directive 2001/29 (“Infosoc Directive”), whether the ‘safe harbour’ exemption from liability for hosting under Article 14(1) of Directive 2000/31 (“E-Com Directive”) are available to these platforms and whether actual knowledge of the illegal activity or information and the awareness of the facts or circumstances from which the illegal activity or information is apparent must relate to specific illegal activities or information.
Analysis of the Advocate General’s Opinion
Communication to the public
Article 3 (1) of the Infosoc Directive prescribes that EU Member States shall provide authors of copyright protected work with the exclusive right to authorise or prohibit any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access them from a place and at a time individually chosen by them.
The first question referred to the CJEU is whether platforms such as Youtube and Uploaded carry out an act of ‘communication to the public’ when a user of their platform uploads protected work. The Advocate General suggests that this is not the case.
The Advocate General applies a relatively strict interpretation of ‘communication to the public’, stating that the role of the platform is the role of an intermediary and that the platform merely provides physical facilities for enabling or making a communication which does not in itself amount to communication. The Advocate General seemingly considers previous case law from the CJEU such as GS Media1, Filmspeler2 and The Pirate Bay’3 sui generis decisions, as the Advocate General considers that nothing in the wording of Article 3(1) of the Infosoc Directive govern matters of secondary liability. According to the Advocate General the platforms i) structuring and indexing the uploaded material; ii) recommending material; iii) being granted a licence to the works, and; iv) receiving renumeration for the business model is not reason to consider that the platforms have performed a communication to the public. The Advocate General thus seems to consider that liability for platforms would subsist only where platform operators deliberately facilitate the carrying out of infringing acts by third parties. This is exemplified by the Advocate General in two cases. Firstly, where the platform selects the content transmitted, determines it in some other way or presents the content as its own. Secondly, when the platform provider has intention to deliberately facilitate third party copyright infringements.
The rightsholders argued that the platforms should be held liable in view of the way in which they have organised their services, having showed “wilful blindness” to illegal users by enabling the users to publish content in an automated manner and by being negligent in fulfilling their duties of care in not checking the uploaded content in advance. The Advocate General did not agree with this line of argumentation. He reasons that there should be a test to evaluate the characteristics of the services by investigating firstly, whether it can be reasoned of whether the features of the services has an “objective explanation” and “offer added value” for legal users and secondly, whether the platform provider took reasonable steps to combat illegal uses of that service.
Exemption of liability for platforms as intermediaries
The Advocate General’s opinion also concerns the exemption of liability under Article 14(1) of the E-Com Directive, a provision which applies where “an information society service is provided that consists of the storage of information provided by a recipient of the service”. The Advocate General considers that the platforms can, in principle, benefit from the aforementioned exemption as long as they have not played an ‘active role’ of such a kind as to give them knowledge of or control over the information in question. This given that the platforms as part of their services engage in the storage of information provided by users of their platforms.
The rightsholders had argued that the platforms have control over the content. The Advocate General refutes this and states that he does not consider the platforms to have control over the content when structuring and indexing the content, developing an algorithm to enable the processing and displaying recommended content and the fact that the platforms control who has access to the content. Furthermore, the Advocate General states that the effect of Article 14(1) applies horizontally to all forms of liability which the platform providers in question may incur in respect of any kind of information which they store at the request of the users of their services, whatever the source of that liability.
Moreover, the view of the Advocate General is that the “notice and takedown” obligation of the platforms in Article 14(1)(a) of E-Com Directive relate to specific illegal information. The rightsholders argument that the platforms ‘knowledge’ or ‘awareness’ should be presumed due to the significant number of illegal uses of which the operators are regularly notified were considered incompatible with current EU law by the Advocate General. Regarding the often cited problems with reuploads of content, the Advocate General considers the incorporation of a “stay down provision” would alter Article 14(1) of the E-Com Directive stating however that a “stay down obligation may be imposed on certain service providers, depending on their capacities in particular, in an injunction pursuant to Article 8(3) of Directive 2001/29.”
It is the role of the Advocates General to propose a legal solution to the CJEU on the cases for which they are responsible. However, the Advocate General’s Opinion is not binding to the CJEU. As the Judges of the CJEU have begun their deliberations, we cannot help but to feel that the reasoning of the Advocate General seems to be a departure from the current legal climate. Should the CJEU’s decision be in accordance with the opinion of the Advocate General, there is a significant risk of lessened copyright protection for rightsholders.
The objective of Infosoc Directive is to ensure a high level of copyright protection. This has been reiterated by the CJEU in many cases. Since the Infosoc Directive became effective, we have therefore seen a harmonization from the CJEU relating to the responsibility of intermediaries for copyright infringement such as GS Media , Filmspeler and The Pirate Bay. Furthermore, this practice have been codified in Directive (EU) 2019/790 (“Copyright Directive”) to be transposed into national law by 7 June 2021 which had not been adopted at the time of the German Federal Court of Justice’s referrals. The new Copyright Directive introduces a new liability regime for online platforms where works are illegally uploaded by the users in the controversial Article 17. The Copyright Directive stipulates that the platform operators cannot rely on being an intermediary but must obtain authorisation such as a license from the rightsholders for the user uploaded works.
In this relatively bold opinion of Advocate General Saugmandsgaard Øe seemingly suggests rejecting the existing case law by implementing a stricter interpretation of making available copyright protected works to the public and the exemption from liability for hosting. The interpretation of the Advocate General does, all in all, seem to reflect a lower standard copyright protection than what is reflected in the current practice of the CJEU and the legislators. One cannot help but to wonder whether the Advocate General has been affected by the heated discussions surrounding the Copyright Directive. The issues surrounding the Copyright Directive and especially Article 17 is far from over, with Poland having sought to annul the provision.4
The remaining options for rightsholders mentioned in opinion, to take actions against users of the illegal uploaders and to seek injunctions against the platform operators, reflects the Advocate General’s lack of insight in the existing troubles when enforcing rights. Should the CJEU rule in the same matter, a system of the platforms turning a blind eye on infringing content would be put into place. Perhaps, some platforms will be purposefully designed as to avoid responsibility. The burden on the rightsholders and courts would become more extensive, having to send an unlimited number of notifications to the platforms and initiating long and costly proceedings for injunctions. This might result in an ineffective protection of copyright, which would go against the current politics and case law in support of the creators.
In conclusion, the judgment of the CJEU will have far-reaching consequences for the interpretation of the existing legal framework including the Copyright Directive. Should the CJEU agree with the opinion of the Advocate General, it could signal a major departure from previous case law and risk a burdensome road ahead for rightsholders and courts alike.
1 Case C‑160/15, ‘GS Media’, where the CJEU found that the fact of posting, on a website, hyperlinks to works published illegally on another website may constitute a ‘communication to the public’ within the meaning of Article 3(1) of Directive 2001/29.
2 Case C‑527/15, Stichting Brein I (“Filmspeler”) where the CJEU ruled that the sale of a multimedia player on which there are pre-installed add-ons containing hyperlinks to websites illegally streaming protected works constitutes a ‘communication to the public’.
3 Case C‑610/15, ‘Stichting Brein II (“The Pirate Bay”) where the CJEU ruled that the making available and management of the internet platform the Pirate Bay which stores and indexes torrent files uploaded by its users, allowing them to share and download protected works in the context of a peer-to-peer network, constitutes a ‘communication to the public’. According to the CJEU, the operators of that The Pirate Bay did not simply engage in a ‘mere provision of physical facilities’ but played an ‘essential role’ in making the works available on the ground that, on the platform, they offered various ways, including a search function and an index of hosted torrent files, to make it easy to locate those files. Thus, without their intervention, ‘the works could not be shared by the users or, at the very least, sharing them on the internet would prove to be more complex’.
4 Case C-401/19, Republic of Poland v European Parliament and Council of the European Union.