In July, the advocate general with the European Court of Justice found that YouTube Inc. shouldn’t be held liable for copyright-infringing uploads on its platform. The decision calls into question the trend of the most recent case law regarding the liability of intermediate platforms that make available, on the internet, multimedia content that infringes copyright.
- As a principle, platforms like YouTube and Uploaded aren’t responsible for (primary) copyright infringement, as they don’t carry out acts of “communication to the public” within the meaning of Article 3(1) of the Infosoc Directive (2001/29) when hosting digital content;
- Such platforms can benefit from the host provider privilege of Article 14 of the E-Commerce Directive (2000/31), irrespective of the nature of the liability at stake, as long as they don’t play an active role (i.e. they do not have knowledge of, or control over, the data stored);
- They nonetheless could be held liable, depending on national laws of the member states, if they don’t comply with the requirements laid down in the host provider privilege (i.e. they had knowledge of the infringement and failed to remove the illicit content promptly).
The AG Opinion: A Literal Analysis of Copyright Infringement Under EU Law
AG Oe seeks to persuade the ECJ to revert to a more literal approach of the Infosoc Directive.
The ECJ’s increasingly expansive construction of “communication to the public” developed over a decade has sought to include, within the scope of copyright infringement, activities of certain platforms (such as peer-to-peer platforms), so that rights holders could seek injunctive relief directly from the platforms for primary liability under the Enforcement Directive (2004/48).
The AG criticizes this approach. First, he says, a communication to the public should require an active act carried out intentionally to transmit a work to a public. As such, only the platforms’ users have that intent and are directly liable under Article 3(1) of the Infosoc Directive.
Second, he contends that the platforms merely provide infrastructures that facilitate acts of communication to the public. Then, the platforms’ liability should be limited to secondary liability, which shouldn’t be sought on infringement but on alternative grounds (e.g. tort or criminal law), as enacted by member states at national levels.
While one can certainly share the concerns of AG Oe, the long-term work of the ECJ has sought to harmonize primary and secondary liability into copyright infringement. It’s therefore questionable whether the ECJ will follow the AG’s opinion or maintain its direction of travel finding that platforms such as YouTube should be held liable for copyright infringement.
The Liability Regime of the Host Provider
A platform that plays an “active role” can’t benefit from the hosting defense. This isn’t called into question by the AG. Nevertheless, the question remains whether such an “active role” or having the requisite knowledge would make the platform liable for copyright infringement.
One option is for the ECJ to hold that an “active role” would deprive the platform from the safe harbor, but not amounting to an “act of communication to the public,” so that the platform avoids liability for copyright infringement, but could have secondary liability in accordance with national laws.
This option seems closest to the AG’s position. But as he mentions, it’s unsatisfactory because the two notions would set different requirements and not “correspond” to each other.
Approaches of the National Courts
In France, YouTube and Dailymotion are protected by the hosting provider privilege (French Supreme Court, Civ. 1, 17 February 2011, 09-67896, Dailymotion).
However, when such platforms have been notified about the infringement and haven’t promptly removed the illicit content, they were generally found liable for copyright infringement. Because legal doctrine has suggested that only the general liability regime of the French civil code, which requires a fault (here the breach of a legal obligation to remove promptly an illicit content), a damage and a causal link should apply, the question remains unsettled.
In Germany, the regime is similar: platforms such as YouTube should only be liable for copyright infringement as an offender if they appropriate third-party uploaded content. Nonetheless, such platforms become liable based on tort when they fail to comply with the notice and take-down obligation.
This liability for tort also applies in Belgium. In addition, platforms should immediately inform the public prosecutor in case the infringement they have actual knowledge of constitutes a criminal act (in the latter case, the platform may only block access to the infringing content while awaiting the measures that the public prosecutor takes).
In the U.K., platforms like YouTube have so far avoided liability for copyright infringement under the host provider privilege. However, platforms have a clear responsibility to act if they become aware of unacceptable material, such awareness being interpreted more broadly than the AG’s view that they need actual knowledge of the specific infringing content.
If the ECJ does not follow the AG’s opinion and instead further increases the level of copyright protection, this will probably be seen as an anticipated application of the new Copyright Directive. Its decision would then impact how national courts should interpret the liability regime of platforms such as YouTube on the basis of the Infosoc Directive.
If rendered before the end of the year, this decision would also bind the U.K.
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.
Lisa Katharina Bauer is an associate at Linklaters in Frankfurt. She specializes in national and international IP dispute resolution focusing on patents, trademarks and unfair competition and advises on all IP aspects of M&A transactions with a focus on licensing.
Tom De Coster is a managing associate at Linklaters in Brussels. He has over 10 years of experience in both contentious and non-contentious IP matters and a focus on licensing and carve-outs.
Natalie Ellerby is counsel at Linklaters in London. She advises clients on all aspects of intellectual property law and is known for her expertise in trade mark disputes and licensing issues.
Jean-François Merdrignac is a managing associate at Linklaters in Paris. He advises and assists international clients in strategic national and pan-European patent, trademark and design litigations, and advises on all IP aspects of M&A transactions and complex restructuring. He also co-heads the sports sector in Paris.