Online platforms violate EU law if they facilitate access to copyrighted content

As EU law currently stands, operators of online platforms do not, in principle, themselves make a communication to the public of copyright-protected content illegally posted online by users of those platforms However, those operators do make such a communication in breach of copyright where they contribute, beyond merely making those platforms available, to giving access to such content to the public.

This was established by the Court of Justice of the European Union (CJEU) with the judgments in joined cases C-682/18 You Tube and C-683/18 Cyando, based on the legislation applicable at the time of the facts (in particular Directive 2001/29). The issue of the liability of operators of online platforms for infringements of intellectual property rights committed by their users has been the subject of a recent regulatory intervention with the introduction of Directive 2019/790. In particular, according to the Article 17 the provider of online content sharing services, i.e., platforms such as YouTube, performs an act of communication to the public when it grants access to copyrighted works or other protected materials uploaded by its users. An online content sharing service provider must therefore obtain authorization from rights holders, for example by entering into a license agreement. However, Directive 2019/790 has not yet been transposed by many Member States, including Italy. Therefore, the European Commission decided a few days ago to initiate infringement proceedings against them by sending a letter of formal notice. This directive does not apply to disputes arising before, or during, its entry into force. The ruling under consideration therefore guides all those cases relating to the liability of online platforms for breach of the right of communication to the public that will have to be decided in the light of the previous discipline.

The judgment in question originated from the decision of a German court to submit to the CJEU two cases: the case against Google and YouTube brought in Germany by a German music producer (Frank Peterson), for the upload, in 2008 by some YouTube users, of music tracks of which he held the rights, and the one against the internet provider Cyando moved by the publisher Elsevier for content shared by other users of the platform in 2013 without his consent. The CJEU followed an already largely established judicial orientation, stating that for an operator of a video sharing platform, or a hosting and file sharing platform, to incur liability for infringement of copyright to communicate a work to the public, it is not enough that a material is unlawfully uploaded to its platform, but the operator itself must be concretely aware of the unlawful making available of a protected content on its platform and must refrain from removing it or immediately blocking access to it. Similarly, there would be an infringement of the right of communication to the public if the operator, knowing that protected content is unlawfully made available to the public through its platform by users of the latter, refrains from implementing the appropriate technical measures that can be expected of a normally diligent operator to counter copyright infringements on that platform. Finally, the infringement would also occur if the operator participates in the selection of protected content unlawfully communicated to the public, by providing on its platform tools specifically intended for the unlawful sharing of such content or by knowingly promoting such sharing.

Luca Condoleo