European Court of Justice ruling on platforms liability delivers a win for YouTube

By Emmanuel Legrand

  The Court of Justice of the European Union has ruled that "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,” which shields them from copyright infringement liability for content uploaded on their platforms.

  But the CJEU added that this only applies under certain conditions. “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,” wrote the court.

  The CJEU was asked by the Bundesgerichtshof (Germany Federal Court of Justice) to clarify European law on the liability of the operators of online platforms as regards copyright- protected works illegally posted online on such platforms by platform users.

Far reaching implications

  The Bundesgerichtshof referred a number of questions to the Court for a preliminary ruling regarding two cases: C-682/18 YouTube, in which the video streaming platform was sued by German producer Frank Peterson, who accused Google's video streaming platform in Germany to feature recordings he owned the copyright to; and C-683/18 Cyando, in which publishing group Elsevier sued file-hosting service Cyandoin Germany after several Elsevier works were uploaded to the platform, without the authorisation of the rights owners. The cases will now proceed in Germany.

  "It is likely that today’s ruling will have far reaching implications, including for the application of Article 17 of the DSM Directive, the Ecommerce Directive and, once adopted, the DSA," wrote Eleonora Rosati of IPkat in her analysis of the ruling, which can be found here.