CJEU issued a rulling in case YouTube/Cyando
The European Court of Justice (CJEU) has finally (almost a year since the Advocate General opinion, on which IPI already reported) issued a ruling in joined cases C-682/18 (YouTube) and C-683/18 (Cyando), concerning platform liability for copyright-infringing user uploads under Art. 3(1) InfoSoc Directive. Even though the CJEU, in its ruling, refrained from engaging with the DSM Directive’s Article 17, the judgment is still highly significant, as it comms at a time when the fundamental rights compatibility of Art. 17 DSM Directive is in question, and very few Member States have implemented the DSM Directive, including Slovenia, where the public debate ended on 28th of June, 2021.
CJEU leaned toward the conclusion that neither YouTube nor Cyando performed acts of communication to the public (Art. 3(1) InfoSoc Directive). The CJEU concluded also that if a platform does directly perform copyright-restricted acts, then it is ineligible for the hosting safe harbour. Only if the platforms meet the requirements of the safe harbour will they be exempt from (at least intermediary or secondary) liability for copyright infringing acts of their users.
In its ruling, CJEU, following the approach it took in GS Media, had put a stronger focus on fundamental rights, by providing that Art. 3(1) requires a fair balance between the interests and fundamental rights of copyright holders, users and the general interest, in particular their freedom of expression and information (Art. 11 of EU Charter of Fundamental Rights). CJEU even seems to be moving closer to the European Court of Human Rights (ECtHR), which reiterates the particular importance of the internet for the freedom of expression and information enshrined in Art. 10(1) of the European Convention of Human Rights (ECHR).
In this light, it will be interesting to follow the decision of the ECJ in Case C-401/19, which otherwise concerns Article 17 of the DSM Directive, and in which the Advocate General (AG) Saugmandsgaard Øe issued its Opinion on 15th of July, 2021.
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The DSM Directive entered into force in June 2019 and the deadline for implementation expired on 7 June 2021. On 23 June 2021, the Commission launched multiple infringement procedures and sent letters of formal notice to Slovenia and 22 other Member States that had failed to notify it of the full transposition of the Directive. Slovenia remains among the 14 Member States against which the Commission is continuing the infringement procedure. On 19 May 2022, the Commission sent reasoned opinions to Belgium, Bulgaria, Cyprus, Denmark, Greece, France, Latvia, Poland, Portugal, Slovenia, Slovakia, Finland and Sweden.