Advocate General’s Opinion in Joined Cases C-682/18 and C-683/18
In recent years the Infosoc Directive saw major changes with the introduction of a new liability regime relating to illegal works uploaded by users. However, at present EU law dictates, by virtue of Directive 2000/31 on electronic commerce, Directive 2001/29 on the harmonisation of certain aspects of copyright and related rights in the information society and Directive 2004/48 on the enforcement of intellectual property rights (hereinafter “Prior Law”), that online operators such as Youtube and Uploaded are not directly liable for the illegal uploading of protected works by users of such platforms.
In conjunction with the expected preliminary ruling decisions of cases C-682/18 and C-683/18 as requested by the German court in 2018, the Advocate General has issued his opinion on the liability of platform operators in terms of Prior Law.
The cases: Peterson v Google LLC, Youtube LLC, Youtube Inc., Google Germany GmbH (C-682/18), and, Elsevier Inc. v Cyando AG (C-683/18), both deal with issues of copyright infringement in light of Prior Law, which according to Advocate General Saugmandsgaard Øe’s exonerates platform operators such as Google, Youtube and Cyando from direct liability with regards to the infringement of copyright owners’ rights. Therefore, all three operators could not be held responsible for any of their users’ illegal uploading of protected works.
Advocate General Saugmandsgaard Øe’s decision was based on the interpretation of the concept of ‘communication to the public’ and that effectively the platform operators cannot be said to be the ones communicating the content to the public. Operators such as Youtube and Cyando act, essentially, as intermediaries providing physical facilities which allow users to carry out ‘a communication to the public’. The primary liability which arises from such ‘communication’ is thus borne by those users alone. The process of uploading a file to such platforms is automatic once initiated by a user. The operator or platform would not determine or select the content that is published. Indeed, Directive 2001/29 does not govern secondary liability and therefore, excluded from the scope of the Directive is the liability of persons (or platform operators) who facilitate third parties in carrying out illegal ‘communications to the public’. Such a liability, which generally involves knowledge of unlawfulness, then falls within the remit of the national law of EU Member States.
The exemption moreover provides that the provider of an information society service, which is comprised of the storage of information provided by the recipient of the service, cannot be held responsible for the information stored, given that such a platform expeditiously removes or disables access to illegal information or activities, upon acquiring knowledge or cognisance of such information or activities.
The Advocate General, on this point, clarified that the exoneration at issue does not apply when the service provider is ‘aware of facts or circumstances from which the illegal activity or information is apparent’ or has ‘actual knowledge of illegal activity of information’. If such an exoneration would apply in such cases, there would indeed be a risk of platform operators becoming judges of ‘online legality’. If this were to be the case, such platforms would see an ‘over-removal’ of content stored by them at the request of users of their platforms.
Despite the above, Directive 2019/790 set to be transposed by each Member State into its national law by 7 June 2021, introduces a new liability regime which shall particularly deal with works which have illegally been uploaded by the users of platforms, such as Youtube and Cynado. The new Directive will require operators to obtain an authorisation from the right holders for the works uploaded by users to their platforms. Thus, the exoneration present under Directive 2001/29 will no longer be seen to apply.
Constantin Film Verleih GmbH v YouTube LLC and Google Inc – C-264/19
In a recent preliminary ruling decision of the Court of Justice of the European Union, the court ruled that where a user uploads a work protected by copyright, in this case a film, on an online platform such as Youtube, judicial authorities are not obliged to request such platform operators to provide the email address, IP address or telephone number of the user who uploaded the film concerned, as Directive 2004/48 enforcing intellectual property rights only covers postal addresses.
Constantin Film Verleih GmbH demanded information about the users who uploaded the films ‘Parker’ and ‘Scary Movie’, however Google Inc (the parent company of YouTube LLC), refused to provide such details arguing that the term “address” within the scope of Directive 2004/48 only intended to capture postal addresses.
The Court opined that where the term “address” is used without any further clarification, this must be interpreted in its most basic definition, meaning a postal address and not email or IP address or telephone number. The Court looked at the travaux préparatoires and stated that nothing suggested that the term “address” should capture email addresses, telephone numbers or IP address of the persons concerned.
The Court further opined that EU Member States may decide to legislate in favour of platform operators having to provide more information in cases such as the Constantin Film Verleih GmbH case, however a fair balance must be struck between general principles of EU law and fundamental rights such as proportionality.
Article written by Associate Dr Bernice Saliba and Legal Trainee Ms Emma-Marie Sammut.
Disclaimer: This article is not intended to impart legal advice and readers are asked to seek verification of statements made before acting on them.