YouTube’s liability for copyright infringement

Analysis of the Judgment of 22 June 2021 of the Court of Justice of the European Union regarding the liability of online platforms for content uploaded by their users in breach of copyright.

Copyright could be defined as the rights of creators over their literary and artistic works. In this sense, works that lend themselves to copyright protection range from books, music, painting, sculpture, films, computer programs, databases, advertisements, maps and technical drawings.

Within copyright, there are economic rights, which allow the rights holder to obtain financial compensation for the use of his works by a third party; and moral rights, which protect the author’s non-economic interests. In the sphere of economic rights of a work, the rightholder may authorise the exploitation of the work in various ways in exchange for remuneration for the use of the work. In this respect, the holder of economic rights may authorise the reproduction of his work, recording, performance, translation, broadcasting, adaptation and/or public communication.

Both European legislation (EU Directive 2019/790 on copyright) and Spanish legislation (Royal Legislative Decree 1/1996, of 12 April, approving the revised text of the Intellectual Property Law) protect copyright, as well as public communication as one of the various forms of exploitation. In this sense, the author of a work has the exclusive right to communicate his work to the public, and may authorise third parties to do so in exchange for remuneration. For information purposes, public communication is regulated in article 20 of the Law on Intellectual Property.

It is precisely in the aspect of public communication where we stop to analyse in the light of the recent judgment of 22 June 2021 handed down by the Court of Justice of the European Union (joined cases C-682/18 and C-683/18), which has ruled on the aforementioned matter and the liability of online platforms for users who post content on them in violation of copyright. In the first case (C-682/18), a music product sued Youtube LLC, and its parent company, Google LLC, before the German courts for putting online through Youtube several phonograms in which it claimed to be the holder of different rights. In the second case (C-683/18), the publishing group Elsevier Inc. brought an action against Cyando AG for the making available online on the Uploaded platform, which is operated by Cyando AG, of a number of works in which Elsevier holds the exclusive rights. It should be noted that, in both cases, the content is “uploaded” by the users of the respective platforms without the authorisation of the copyright holder.

The German courts referred several questions to the Court of Justice of the European Union for a preliminary ruling in order to clarify the liability of the online platforms for copyright infringement by their users. The Court of Justice of the European Union ruled and reached the following conclusions:

• Online platforms such as those in question do not themselves communicate to the public content uploaded unlawfully by their users, unless, beyond the mere making available of the platform, they contribute to providing the public with access to such copyright-infringing content. In this regard, in order to establish whether or not it has contributed to copyright infringement, it is necessary to analyse whether the online platforms (i) are aware of the provision of copyright infringing content and refrain from implementing measures to remove or block the content in the shortest possible time; (ii) have implemented appropriate technical measures to combat copyright infringement; and (iii) participate in the selection of protected content that is unlawfully communicated to the public, provide tools for the unlawful exchange of such content, or knowingly promote such exchanges.

That said, the Court held that Youtube and Cyando did not make a public communication and, therefore, is not liable for content illegally “uploaded” by users as those platforms (i) intervene neither in the creation nor in the selection of the content that has been uploaded to the platform; (ii) they inform their users of the prohibition to place protected content on their platform in violation of copyright; (iii) they have adopted technical measures aimed at combating copyright infringements such as the inclusion of a notification button to request the removal of illegal content; and (iv) they do not facilitate or promote the illegal exchange of protected content.

• The listed online platforms shall not be liable for copyright infringement to the extent that they do not play an active role in the awareness and control of the content uploaded on their platform.

In the cases raised, the Court considered that the fact that online platforms have a search engine and recommend videos on the basis of the profile does not imply an active role in the control of infringing content uploaded.

With this ruling, the CJEU sets out a roadmap of the limits and mechanisms that online platforms must adopt in order not to be held liable for copyright infringement.