Operators of online platforms such as YouTube and uploaded.net are currently not directly liable if users upload copyrighted works to them. The European Court of Justice (ECJ) decided on Tuesday in a ruling on video sharing and sharehosting services (C-683/18). In principle, the liability privileges from the E-Commerce Directive from 2000 apply to providers if users illegally reproduce third-party works on such servers in public.
The prerequisite for this is that the operator plays a neutral role as an intermediary, explained the European judges. Here it is necessary to check “whether his behavior is purely technical, automatic and passive”. The provider must not have any knowledge or control over the content stored by him, otherwise he could be responsible.
Provider must not instigate
The platform operators themselves do not publicly reproduce the corresponding uploaded works within the meaning of the basic copyright directive of 2001, the ECJ has worked out. However, this only applies if the providers alone provide the platform. They should not help to give the public “in violation of copyright access” to protected content.
The latter is the case, for example, if the operator “has specific knowledge of an infringing publication on his portal and does not immediately delete this content or block access to it”. In addition, the provider must take “appropriate technical measures” to “credibly and effectively combat” copyright infringements.
In addition, the ECJ does not want to release operators who promote unauthorized dissemination on their platform, for example by offering aids. What matters here is who a provider has “chosen a business model that induces the users of its platform” to make third-party works publicly accessible in an unlawful manner.
Both cases from Germany
In essence, the judges are following the recommendation of the CJEU Advocate General Henrik Saugmandsgaard Øe, which is almost a year old. They also clarify the conditions under which rights holders can obtain judicial blocking orders under the old Copyright Directive. The operator must first be made aware of any legal infringement. Only if the latter does not immediately block the work or remove it and prevent it from being uploaded again, a procedure is justified.
In the one dealt with by the ECJ Dispute C-682/18 The music producer Frank Peterson sued YouTube and the parent company Google after music works from the repertoire of the singer Sarah Brightman were put on YouTube in 2008. The Hamburg district court initially ordered YouTube to be blocked. The higher regional court decided, however, that the operator does not have to actively check whether users are uploading protected material.
In the second Case C-683/18 the publishing group Elsevier is taking action in German courts against the company Cyando, the operator of uploaded.net. The reason for this is the sharing of various works on the share hosting platform in 2013. The Federal Court of Justice (BGH), which has meanwhile dealt with both disputes, had submitted several questions to the ECJ for a preliminary ruling. Based on the answers to this, the BGH must now continue its proceedings.
Different from August
With the EU copyright reform passed in 2019, the ECJ ruling should not hold back for long. Because the EU legislator imposes new liabilities on portal operators. The Bundestag recently implemented the requirements in German law with a special construct and did not exclude upload filters. The reform will take effect at the beginning of August.
“The clarifications that many hoped for by the ECJ on platform liability have unfortunately only been made to a limited extent according to an initial assessment,” said Florian Drücke from the Federal Association of the Music Industry (BVMI), disappointed with the decision. Even with the amendment to the copyright law, the required legal certainty in the area of digital licenses was “not achieved at sight”. Julia Dönch, lawyer at the law firm CMS, assumes that the judgment will no longer have any effect on future disputes about uploads. From now on, operators would have to obtain the consent of the rights holder for public reproduction for the works uploaded by users.