AG’s opinion the the YouTube/Cyando case
In the joint case of YouTube/Cyando (C-682/18 and C-683/18) the music producer Frank Peterson sued YouTube before german courts because its users have uploaded music and videos, on which he held certain rights. The German Court of Justice has asked the CJEU six questions for preliminary ruling regarding the liability of online platform operators for copyright-protected works that have been illegally uploaded by the users.
Recently the AG Saugmandsgaard Øe has issued his opinion in the YouTube/Cyando case which is not legally binding for the CJEU but nevertheless sheds some light on the interpretation of EU law. He emphasised that online platforms in principle do not perform an act of “communication to the public” in line with Art. 3(1) of the InfoSoc Directive (for more on this topic see here) but that they are merely intermediaries that facilitate the communication of the users who are primarily responsible for the act. The InfoSoc Directive does not establish a secondary liability of the platforms. Moreover, Art. 14 of the Directive on the electronic commerce establishes that online platforms are not liable for content stored upon the user’s request, under the condition that the provider does not have actual knowledge of the illegal activity, or if it becomes aware of such activity, it acts expeditiously to remove or to disable access to the information (the so-called “safe harbour” provision). The platform thus holds an obligation to carefully examine all the facts and circumstances of which it becomes aware in the context of notifications of specific illegal activities, something which cannot be substituted by an obligation to investigate facts and circumstances in a general and active manner. In the opinion of the AG this tries to prevent the platforms dealing with complex legal issues and becoming judges of online legality. The over-removal of content without assessing the relevant contextual circumstances could jeopardise freedom of expression.
The AG thus concluded that, under current EU law, online platforms such as YouTube cannot be held directly responsible for illegal content uploaded by its users. The new DSM Directive, which does not apply to the dispute in question and which Member States will have to implement into national law by 7 June 2021 at the latest, will change this liability regime. Namely, Article 17 stipulates that the platforms will have to obtain permission from the rights holders to upload protected works, otherwise they will be liable for copyright infringement. In practice, this means that platforms will have to set up filters to remove infringing content if they will want to avoid liability. This may lead to excessive removal of content, which is what the AG is concerned about in its Opinion. We will soon see how the potential conflict with freedom of expression will be resolved by the CJEU in the Poland v. Parliament and Council (C-401/19) case.
IPKat in BLACA jointly organised a webinar regarding the AG Opinion in YouTube/Cyando where Eleonora Rosati, Julia Reda and Lauri Rechardt presented their views on the case. You can access the recording of the webinar here.
The 4th Open Knowledge Day took place on Tuesday 17 October 2023, with an accompanying workshop on 18 October 2023. This year it was organised by the Open Data and Intellectual Property Institute (ODIPI) and supported by Knowledge Rights 21 (KR21).
We invite you to the fourth Open Knowledge Day and the workshop, which will take place this year within the framework of the programme and with the support of Knowledge Rights 21. The event will bring together experts from different European countries to discuss two topics: the first part will deal with the legal basis for data analytics, which is a key part of machine learning and related artificial intelligence, and the general exception for research. In the second part, open science in theory and practice will be presented both in Slovenia and in some Western Balkan countries. Representatives of research and educational institutions from Slovenia and the Western Balkan countries, as well as interested members of the public, are invited to attend.
Dr. Maja Bogataj Jančič, a renowned expert in copyright law, has joined the Berkman Klein Center for Internet & Society at Harvard University, where she will serve as an affiliate researcher for the next two years.
On Friday, October 6, 2023, the online seminar “Practical Experiences in Resolving Copyrights of Modern Book Works” took place. The seminar addressed relevant questions concerning user access to literary works in digital form.