The Court of Justice of the European Union in matter of Frank Peterson v Google LLC, YouTube Inc., YouTube LLC, Google Germany GmbH; and Elsevier Inc. v Cyando AG, passed a ruling on the liability or exemption from liability of YouTube /Google for illegal uploading of protected videos on June 22, 2021.
The Grand Chamber rules in the favor of renowned media portal YouTube. It held that, YouTube and similar intermediaries’ entities can’t be held liable for infringement of copyright unless the intermediary or the operator had specific knowledge that the protected content is available illegally on its platform and abstain from rapidly deleting it or blocking its access.
The issue before the Court was regarding several infringements of the IP rights held by Mr. Frank Peterson and Elsevier Inc. committed by users of the video sharing platform operated by YouTube and the file-hosting and sharing platform operated by Cyando, respectively.
Facts:
Frank Peterson v Google LLC, YouTube Inc., YouTube LLC, Google Germany GmbH[1]
Frank Peterson is a music producer and owns a studio named the Nemo Studios which entered into a worldwide exclusive artist contract with the performer Sarah Brightman covering the use of audio and video recordings of her performances even concluded a licence agreement, covering exclusive distribution of the recordings and performances of Sarah Brightman.
In November 2008, Sarah Brightman started a tour named the ‘Symphony Tour’ in which she performed the works she had recorded for her album Winter Symphony. Noticing that some private recordings of that concerts could be accessed on an online platform YouTube, Frank Peterson issued cease and desist declarations under the penalty threat to the owner of YouTube and Google Germany. Initially, the access to such videos were blocked, Sarah Brightman’s performances audio recordings accompanied by still and moving images once again appeared on YouTube. Consequently, Frank Peterson brought an action against Google and YouTube seeking an injunction, declaration that they were liable to pay damages and, disclosure of the information.
Elsevier v. Cyando[2]
Elsevier, an international specialist publisher, having the exclusive rights to use the works at issue which is called Gray’s Anatomy for Students, Atlas of Human Anatomy and Campbell-Walsh Urology. On being aware that Cyando, an operator of ‘Uploaded’ file hosting and sharing platform, had uploaded three works of Elsevier in respect of which it held exclusive rights, Elsevier sent a notice to Cyando. Furthermore, Elsevier brought an action against Cyando for prohibiting and passing injunction, and held them responsible for the copyright infringement in the alternative, as a participant in those infringements as an interferer.
Statement of Issues:
- Whether Article 3(1) of the Copyright Directive must be interpreted as meaning that the operator of a video-sharing platform or a file-hosting and ‑sharing platform, on which users can illegally make protected content available to the public, itself makes a ‘communication to the public’ of that content, within the meaning of that provision, in conditions such as those at issue in the main proceedings.
- Whether Article 14(1)(a) of that directive must be interpreted as meaning that, for that operator to be excluded, under that provision, from the exemption from liability provided for in Article 14(1), it must have knowledge of specific illegal acts committed by its users relating to protected content that was uploaded to its platform.
- Whether Article 8(3) of the Copyright Directive must be interpreted as precluding a situation where the rightholder is not able to obtain an injunction against an intermediary whose services are used by a third party to infringe the rights of that rightholder unless that infringement has previously been notified to that intermediary and that infringement is repeated.
OBSERVATIONS:
The Bench of the Grand Chamber after referring to all the contentions presented, made the following observations in the case:
- With regards to the first issue regarding the ‘Communication to the Public’ is whether by the operator/intermediary or by the users?
As per the Art. 3(1) of the Copyright Directive, Member States are required to provide authors with the exclusive right to authorize or restrict their works communication to the public, hence the authors have a preventive right enabling them to mediate between possible users of their work and the public communication which such users might behold making, in order to restrict those communication.
The observation of the bench was that decisively illegal content was uploaded to the platform concerned not by the operator, but by users, acting with autonomous names and responsible for their own actions. Moreover, it was the platform users determining whether the content they uploaded was made available to other internet users through that platform so that those other users can have access to it.
With respect to the uploaded file hosting and sharing platform, the download link allowing access to uploaded content were communicated only to the user i.e., file uploader and that the platform did not make it possible to share that link. Hence, to share such content, the user must either send the download link directly to the persons to whom he wants to give access or must publish such link on the internet. Furthermore, it informs its users, in the conditions of use of its platform, that they are prohibited from infringing copyright through that platform.
- With regards to the second issue, “Whether Operators can claim exemption from liability?”
Determining whether the operator of a video sharing platform/file-hosting/sharing platform may get an exemption under Art. 14(1) of the Directive on Electronic Commerce from the liability for the safeguarded content illegally communicate to the public by the users through its platform, it was essential to examine the role played by that operator, whether it was neutral or not, which mean that it had no knowledge or control over the content it stores, or whether, that operator actively played the role that gave it knowledge of or control over that content.
Noticing that the service providers concerned could not, in accordance with Art. 15(1) of that directive, be subject to a general obligation to monitor the information which they store or transmit or to a general obligation actively to look for circumstances indicating illegal activity.
- With regards to the third issue, “Whether actions can be brought against the intermediary without previously notifying it of infringement?”
The Art. 8(3) of the Copyright Directive states, ‘Member States shall ensure that right holder are in a position to apply for an injunction against intermediaries whose services are used by a third party to infringe copyright or a related right’. It must b
e interpreted as not precluding a situation under any national law where a copyright holder or related right holder may not obtain any injunction against any intermediary whose service are used by a third party to infringe its right, and that intermediary have no knowledge of such infringement, within the ambit of Art. 14(1)(a), unless, before court proceedings are commenced, such infringement had first been notified to such intermediary and the latter had failed to mediate immediately with respect to remove the content or to block such access and ensure that such infringements don’t reoccur.
CONCLUSION:
The Bench after considering all the key factors while dealing with the contentions made held as follows:
- The Art. 3(1) of the Copyright Directive must be interpreted as meaning that the operator of a video-sharing platform or a file hosting and sharing platform, on which users can illegally make protected content available to the public, doesn’t make a pubic communication of that content, within the meaning of that provision, until it contributes, beyond merely making that platform available, to giving access to such content to the public in breach of copyright. Hence, an operator can only be held liable for infringement made through his platform where it has specific knowledge that content which is protected is available illegally on its platform and refrains from deleting it or block access to it, or where that operators knowledge in a general sense, that users of its platform are making protected content illegally available to the public by its platform, refrains from putting in place the appropriate technological measures that can be expected from a diligent operator.
- For such operator to be excluded from the exemption from liability provided for in Art. 14(1), it must have knowledge of specific illegal acts committed by their users related to protected content which was uploaded to their platform and that as soon as the service providers actually obtained knowledge of illegal information, it acted expeditiously to remove or restrict access to such content.
- When the interferer is a service provider whose service is to store information provided by a user, in principle that service provider can be the subject of a prohibiting injunction only if, after notification of a clear infringement of an IP right had been provided, that right is infringed again or continued that service provider had not intervened immediately after that notification to remove such content in question or block the access to such content and ensure that such infringements doesn’t reoccur.
AUTHORS COMMENTS:
The bench has rightly held that YouTube or Google are not liable for hosing infringing work. The limit of the duties of conduct is always the principle of proportionality, which must be observed in individual cases. It may be necessary for each service provider to draw the line individually, taking into account the available technology.
[1] C‑682/18
[2] C‑683/18
