The Attorney General of the Court of Justice of the European Union ruled on Thursday in an opinion stating that different platforms such as ...
The Attorney General of the Court of Justice of the European Union ruled on Thursday in an opinion stating that different platforms such as YouTube are not responsible for the illegal uploading of protected works by users.
Henrik Saugmandsgaard Øe, The Attorney General of the Court of Justice of the European Union (ECJ), delivered his opinion on Thursday 16 July in several related cases, one of which concerns Google and its video platform YouTube. In his opinion, the lawyer explains why, in his view, online services such as YouTube or Uploaded are not liable for the illegal uploading of copyrighted content or works by users of these different services.
The background: the German Bundesgerichtshof referred two cases to the EUJC
Until the end of next year, this copyright issue is governed by the Directive of 8 June 2000 on electronic commerce, the Directive of 22 May 2001 on copyright and related rights in the information society, and the Directive of 29 April 2004 on the enforcement of intellectual property rights.
It is on the basis of these various texts that the Attorney General has delivered his opinion on several cases. One of those cases involved Google and Frank Peterson, a music producer who is suing YouTube before the German courts after discovering, in 2008, several phonograms on which he claims copyright.
The second case involves Cyando, accused by the publisher Elsevier of having hosted in 2013, on the Uploaded file-sharing platform, various works for which the publisher held exclusive rights.
Both cases were referred to the Bundesgerichtshof (the German Federal Court of Justice) and, given its lack of jurisdiction in the matter, it preferred to refer several preliminary questions to the Court of Justice of the European Union for a preliminary ruling.
The Attorney General of the ECJ supports the platforms, but moderates his recommendations.
Henrik Saugmandsgaard Øe, at the end of his opinion, proposes that the Court should rule that video services and hosting platforms are not legally and directly liable for infringements of exclusive rights in works which have occurred. He considers that "primary" liability should be borne only by users who have put online unlawfully protected content, and that platforms should therefore be regarded only as intermediaries.
According to Henrik Saugmandsgaard Øe, the responsibility of platforms could only be invoked if they became aware of a copyright infringement and did not react accordingly, by not having "promptly removed or made inaccessible such information". The lawyer asks that right holders should be able to obtain court injunctions against the platforms, so as to impose an obligation to remove content without waiting for a recurrence or without having to prove wrongful behaviour by the platform.
This notice, if it is then to be applied, will only be valid for a big year, as Directive 2019/780 of 17 April 2019 on copyright and related rights in the digital single market will be transposed into the national law of each Member State by 7 June 2021. This Directive introduces a new liability regime for online content platforms, which will have to obtain authorization from right holders by concluding a licensing agreement, for example, for works posted by users of their service.
Source: CJEU Opinion