In the first case the claimant, Frank Peterson, a music producer, issued proceedings against YouTube and its parent company Google in the German courts in relation to the uploading to YouTube, in 2008, of several recordings in which he claimed to hold various rights. The material, which included tracks from Sarah Brightman’s album “A Winter Symphony”, as well as private recordings made during her “Symphony Tour”, was uploaded by users of the platform without his authorisation.

In the second case, the publishing group Elsevier Inc issued proceedings against Cyando AG in the German courts in relation to the uploading to its file-hosting and file-sharing platform Uploaded, in 2013, of various works to which Elsevier holds the exclusive rights. The material, which included “Gray’s Anatomy for Students”, “Atlas of Human Anatomy” and “Campbell-Walsh Urology”, was uploaded by users of the platform without its authorisation and was freely available on Uploaded via the link collections rehabgate.com, avaxhome.ws and bookarchive.ws.

The German Federal Court referred several questions to the CJEU.

The CJEU found that an online video-sharing or file-hosting platform operator, who has an indispensable role in making content available, will be committing an “act of communication” within the meaning of s 3(1) of the Copyright Directive (2001/29/EC) if it intervenes, in full knowledge of the consequences of its action, to give its customers access to a copyright work, particularly where, in the absence of such intervention, they would not be able to enjoy the work.

Such “act of communication” will not be a “communication to the public”, however, unless the platform operator contributes, beyond simply making the platform available, to giving access to the content to the public in breach of copyright. For example, if the operator has specific knowledge that copyright content is available illegally on its platform and it does not quickly delete it or block access to it, or if the operator, despite the fact that it knows or ought to know, in a general sense, that users of its platform are making copyright content available to the public illegally on its platform, does not put in place appropriate technological measures to counter, credibly and effectively, copyright infringements on its platform, then it will be doing more than simply making the platform available. Further, if the operator participates in selecting copyright content illegally communicated to the public, provides tools on its platform specifically intended for the illegal sharing of such content or knowingly promotes such sharing, which will be proved if the operator has adopted a financial model that encourages users illegally to share copyright content, it will also be committing an act of communication to the public under Article 3(1).

As for the exemption from liability under Article 14(1) of the E-Commerce Directive (2000/31/EC), the CJEU considered whether the role played by the platform operator is neutral, i.e., whether its conduct could be considered merely technical, automatic and passive, which means that it has no knowledge of or control over the content it stores, or whether the operator plays an active role that gives it knowledge of or control over that content. The CJEU ruled that an operator can benefit from the exemption if it does not play an active role such that it has knowledge of or control over the content. The CJEU emphasised that the operator’s knowledge or awareness must be of specific illegal acts committed by its users for the exemption not to apply.

The CJEU also clarified the circumstances under which, pursuant to Article 8(3) of the Copyright Directive, rights holders can obtain injunctions against operators of online platforms. It found that the Directive does not preclude national law from providing that a copyright holder or the holder of a related right cannot obtain an injunction against an operator, whose service has been used by a third party to infringe his or her rights, where the operator has no knowledge or awareness of the infringement, unless, before court proceedings are commenced, the infringement has first been notified to the operator and the operator has failed to intervene in a timely manner to remove the content in question or to block access to it and to ensure that such infringements do not recur.

The CJEU said it was for the national court to satisfy itself that applying such a condition would not result in a delay to the cessation of the infringement, causing disproportionate damage to the rights holder. (Joined Cases C-682/18 and C-683/18 Frank Peterson v Google LLC EU:C:2021:503 (22 June 2021) — to read the judgment in full, click here).