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 Internet Archive is a non-profit organization that maintains the Open Library, a digital library index, and is dedicated to preserving knowledge. As many of the works in the Internet Archive are under copyright, the Archive uses a system of controlled digital lending based on digital rights management to prevent unauthorized downloading or copying of copyrighted books. In March 2020, due to the circumstances surrounding the COVID-19 pandemic, the Internet Archive established the National Emergency Library, eliminating the waiting lists used in the Open Library and expanding access to books for all readers. In June 2020, the Emergency National Library faced a lawsuit from four book publishers and was ultimately closed.
The 43rd session of the WIPO Standing Committee on Copyright and Related Rights (hereinafter SCCR) made substantial progress on the issues advocated by the A2K Coalition (Access to Knowledge Coalition), which IPI is a member of. This year’s session was the most productive on the issues of exceptions and limitations. James Love (Knowledge Ecology International), a long-time observer at WIPO, described the outcome and the impact of the public interest community as the strongest since the conclusion of the Marrakech Treaty, which brought global copyright exceptions for the benefit of the blind and visually impaired.
Today, March 17, 2023, a symposium on law in the information society is taking place in the golden lecture hall of the Faculty of Law in Ljubljana. Dr. Maja Bogataj Jančič will present copyright aspects of artificial intelligence at the symposium.
The third day of the 43rd session of the WIPO Standing Committee on Copyright and Related Rights is intended for discussion on the topic of exceptions and limitations to copyright, especially in connection with the right to research.