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In its recent judgment of June 22, 2021 (joined cases C-682/18 and C-683/18), the Court of Justice of the European Union (CJEU) answered several questions referred for a preliminary ruling by the Bundesgerichtshof (German Federal Court of Justice) in the proceedings between Frank Peterson and Google LLC and YouTube LLC, and between Elsevier Inc. and Cyando AG. The disputes relate to infringements of intellectual property rights held by Frank Peterson and Elsevier Inc. by users of the video-sharing platform (YouTube) operated by YouTube and Cyando’s file sharing and hosting platform (Uploaded).

After exhausting all the proceedings in both disputes, the Bundesgerichtshof decided to refer a series of questions for preliminary ruling that the Court of Justice has now resolved as follows:

  • First question referred

    The Court of Justice states that article 3.1 of Directive 2001/29/EC on copyright,  dealing with the right to communicate to the public, must be interpreted as meaning that the operator of a platform such as those considered in this case does not communicate to the public the content illegally uploaded by users “unless it contributes, beyond merely making that platform available, to giving access to such content to the public in breach of copyright.”

    The CJEU offers some criteria to determine whether a platform makes that contribution. It clarifies that, even though the operator plays an unavoidable role in making the potentially illegal content available, this is not the only relevant criterion and it must be analyzed along with others, such as whether its participation was deliberate, i.e., whether it acted with full knowledge of the consequences of its conduct.

    The Court identifies the following criteria to determine whether the operator is acting with full knowledge of the consequences, establishing that it does so: (i) if it has specific knowledge that illegal content has been uploaded and fails to promptly remove or block access to it; (ii) if it fails to apply the appropriate technical measures expected from a reasonably diligent operator to credibly and effectively tackle copyright infringements on its platform, despite the fact that it knows or ought to know, in a general sense, that users of its platform make protected content available to the public illegally; or (iii) if it participates in selecting protected content illegally communicated to the public, provides tools for sharing that content illegally, or knowingly promotes the sharing of it.

    As a final point, the Court states that the simple fact that the operator is aware that protected content is available illegally on its platform or that its aim is to make a profit is not sufficient grounds to conclude that it has acted deliberately.
  • Second and third referred questions

    The Court then determines that section 14.1 of Directive 2000/31/EC on e-commerce (which establishes an exemption from liability for hosting) must be interpreted as meaning that a video‑sharing platform or a file-hosting and -sharing platform’s activity falls within the scope of the exemption, to the extent that that activity covers content uploaded to its platform by its users. The operator can benefit from the exemption from liability if it does not play an active role that means it has knowledge of or control over the content uploaded to its platform. The Court clarifies that “the fact […] that the operator of a video-sharing platform […] implements technological measures aimed at detecting, among the videos communicated to the public via its platform, content which may infringe copyright, does not mean that, by doing so, that operator plays an active role giving it knowledge of and control over the content of those videos.”

    Moreover, in this context, the lack-of-knowledge requirement under article 14.1.a) means that, for the operator to be excluded from the liability exemption, it must have knowledge of the specific illegal acts of its users, and abstract knowledge that protected content is being made available illegally on its platform is insufficient. The CJEU further clarifies that the fact that the operator automatically indexes content uploaded to its platform, has a search function and recommends videos based on users’ profiles or preferences is not sufficient to conclude that it has specific knowledge of illegal activities carried out on its platform.
  • Fourth question referred

    The Court rules that article 8.3 of the Copyright Directive (which establishes that rightholders can request an injunction against intermediaries used by third parties to infringe copyrights) does not preclude national law from requiring the rightholder to notify the infringement of its rights to the intermediary used, as a condition for requesting an injunction against the intermediary. In fact, according to the CJEU, such an obligation prevents a situation where an online content-sharing operator is exposed to injunctions and court costs without having had the opportunity to correct the infringement and take the necessary measures to avoid further infringements. It also releases it from the obligation to actively supervise the content uploaded by its users.

    However, the Court states that national courts must ensure that this requirement does not prolong the infringement and cause disproportionate harm to the rightholder.

The CJEU then confirmed that the fifth and sixth questions do not require a ruling as they are only posed in the event of a negative response to the first and second, which is not the case.

Finally, we must keep in mind that, as the CJEU expressly states, these interpretations do not concern the regime established in article 17 of Directive (EU) 2019/790, on copyright and related rights in the Digital Single Market but refer to Directive 2001/29/EC on copyrights, Directive 2000/31/EC on electronic commerce, and Directive 2004/48/CE on the enforcement of intellectual property rights, applicable when the events in dispute occurred.

We will have to wait for future rulings from the Court of Justice to see how it interprets the most recent regulations in similar situations.

Clara Sánchez López

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