The matter at hand case C‑682/18 (Frank Peterson v Google and YouTube)
Peterson held an exclusive license covering the distribution of the recordings and performances of Sarah Brightman. Upon discovering that works taken from a Sarah Brightman album could be accessed via YouTube, Peterson brought an action before the Landgericht Hamburg (Regional Court, Hamburg, Germany) against YouTube and its shareholder Google on the grounds of copyright infringement. The Landgericht Hamburg upheld the action related to three (musical) works.
On appeal, the Oberlandesgericht Hamburg (Higher Regional Court, Hamburg, Germany) stated that YouTube was not liable for the copyright infringements since it did not play any active role in the creation or posting of the content at issue on the platform and, moreover, did not adopt that third-party content as its own. Nevertheless, the appeal court held YouTube liable as an ‘interferer’ (Störerin) since it had failed to discharge its obligations by not immediately deleting or blocking the content at issue. In the following appeal, the Bundesgerichtshof (Federal Court of Justice, Germany) noted, in the first place, that the success of Peterson’s appeal depends on whether YouTube’s conduct constitutes communication to the public within the meaning of Article 3(1) of the Copyright DirectiveDirective 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society. The Bundesgerichtshof questioned whether YouTube played an indispensable role in the alleged infringements that could be classified as an act of communication to the public on itself.
In the second place, if YouTube’s conduct cannot be classified as a communication to the public, it is then necessary to determine whether the activity of the operator of a video-sharing platform comes within the scope of Article 14(1) of the Directive on Electronic Commerce so that that operator may benefit from an exemption from liability in respect of the information stored on its platform. In the last place, the question arises if YouTube’s conduct at issue falls within the scope of Article 14(1) of the Directive on Electronic Commerce, as to whether it is compatible with Article 8(3) of the Copyright DirectiveDirective 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society that, under national law, the right holder should not be in a position to obtain an injunction against the operator of a video-sharing platform whose services have been used by a third party to infringe copyright or related rights unless the operator, after having been notified of a clear infringement of such a right, has not acted expeditiously to delete the content in question or to block access to it and to ensure that such infringements do not recur.
The matter at hand case C‑683/18 (Elsevier v Cyando)
Cyando operates a file-hosting and -sharing platform. The uploading of a file by a user happens automatically without it being seen and/or monitored by Cyando. Each time a file is uploaded, Cyando automatically creates a download link that allows direct access to the file concerned.
Publisher Elsevier discovered several copyright infringements being conducted via the Cyando file-sharing platform and brought action against Cyando before the Landgericht München (Regional Court I, Munich, Germany). Elsevier requested a prohibitory injunction, principally, as the party responsible for copyright infringements, in the alternative, as a participant in those infringements and, in the further alternative, as an ‘interferer’ (Störerin) with regards to the infringements in the main proceedings. The Landgericht issued a prohibitory injunction ordering Cyando to cease three infringements as a participant in the infringements.
The Oberlandesgericht München (Higher Regional Court, Munich, Germany) varied the judgment at first instance. The appeal court held, inter alia, that Elsevier could not pursue a claim against Cyando as the party infringing the rights of copyright in question. Cyando’s contribution was limited to providing the technical means allowing the works at issue to be made available to the public. As an interferer, Cyando was required to ensure that the infringements of the copyright in the three works were ended. Furthermore, as an ‘interferer’, Cyando was not required to pay damages.
In appeal on the point of law, the Bundesgerichtshof has asked virtually the same questions for a preliminary ruling as in case C-682-18, and by decision of the President of the ECJ, cases C‑682/18 and C‑683/18 were joined for the purposes of the written and oral procedure and the judgment.
the judgment of the ecj
The ECJ rules that whether the role played by the operator of a video-sharing platform or a file-hosting and -sharing platform is indispensable is not the only criterion that must be considered in the context of the individual assessment that must be made. In particular, the criterion relating to whether the intervention of such an operator is deliberate must be applied. It is necessary, having regard both to the importance of the role played by such an intervention by the operator of a platform for the communication made by the user of that platform and to the deliberate nature of that intervention, to assess whether, having regard to its specific context, it must be regarded as constituting an act of communication.
In that regard, the ECJ states that 'the act of intervening in full knowledge of the consequences of doing so, with the aim of giving the public access to protected works, may lead that intervention to be classified as an 'act of communication'. It is necessary to consider all the factors characterising the situation at issue which make it possible to draw, directly or indirectly, conclusions as to whether or not its intervention in the illegal communication of that content was deliberate. Relevant factors include, inter alia: the circumstance that such an operator, despite the fact that it knows or ought to know, in a general sense, that users of its platform are making protected content available to the public illegally via its platform, refrains from putting in place the appropriate technological measures that can be expected from a reasonably diligent operator in its situation in order to counter credibly and effectively copyright infringements on that platform, and that the operator participates in selecting protected content illegally communicated to the public, that it provides tools on its platform specifically intended for the illegal sharing of such content, or that it knowingly promotes such sharing, which may be attested by the fact that the operator has adopted a financial model that encourages users of its platform illegally to communicate protected content to the public via that platform.
Furthermore, as regards the second and third questions, the ECJ rules that the activity of the operator of a video-sharing platform, like YouTube, or a file-hosting and -sharing platform, like Cyando, falls within the scope of Article 14(1) of the Directive on Electronic Commerce, provided that that operator does not play an active role of such a kind as to give it knowledge of or control over the content uploaded to its platform. Circumstances, such as the operator of an online content-sharing platform automatically indexing content uploaded to that platform, the platform having a search function, and recommending videos, are not sufficient grounds for the conclusion that the operator has 'specific' knowledge of illegal activities carried out on that platform or of illegal information stored on it.
The fourth question, referred in each of the two cases, is whether Article 8(3) of the Copyright DirectiveDirective 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society must be interpreted as precluding a situation where the right holder is not able to obtain an injunction against an intermediary whose services are used by a third party to infringe the rights of that right holder unless that infringement has previously been notified to that intermediary and that infringement is repeated. The ECJ rules that such a condition, laid down by German law, aims specifically to consider the logic inherent in Article 14(1) of the Directive on Electronic Commerce and the prohibition under Article 15(1) of that directive on imposing on such a service provider a general obligation to monitor the information that it stores or actively to look for facts or circumstances indicating illegal activity. Thus, the ECJ notes that while Member States are required, under Article 8(3) of the Copyright DirectiveDirective 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, to guarantee to right holders covered by that directive a legal remedy against providers whose services are used by third parties to infringe those rights, Member States may, however, provide for a procedure that precedes the exercise of that legal remedy, which takes account of the fact that, in accordance with Article 14(1) of the Directive on Electronic Commerce, the service provider concerned is not liable for the infringement in question. The ECJ rules that a condition such as that laid down by national law in the main proceedings is compatible with Article 15(1) of the Directive on Electronic Commerce and that it is not incompatible with the balance between the protection of intellectual property rights (Article 17(2) of the CharterCharter of Fundamental Rights of the European Union [2000/C 364/01]) and the right to freedom of expression and of information, safeguarded for internet users (Article 11 of the CharterCharter of Fundamental Rights of the European Union [2000/C 364/01]).