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16 July 2020CopyrightRory O'Neill

YouTube not liable for infringing videos, says CJEU adviser

Platforms like  YouTube and  Cyando are not directly liable for infringing content uploaded by their users, an adviser to the EU’s top court has said.

In an opinion issued this morning, July 16, advocate general (AG) Henrik Saugmandsgaard Øe, said that these platforms do not carry out an “act of communication to the public”, an  important concept in EU copyright law that can determine liability for infringement.

Saugmandsgaard Øe is an AG at the Court of Justice of the European Union (CJEU), the highest legal authority in the EU.

While his opinion is not binding, AGs’ opinions are considered to be influential and often form the basis of the court’s final decision.

The YouTube/Cyando joined cases deal with liability for infringing content uploaded onto file and video sharing platforms.

That hinges on whether YouTube and Cyando, the operator of file-sharing site Uploaded.net, are carrying out a “communication to the public” of the infringing content.

According to the AG, the process of uploading a video to a platform such as YouTube is “automatic”, without the platform “selecting or determining in any other way the content that is published”.

Saugmandsgaard Øe also stated that the relevant EU law, the Copyright Directive passed last year, was “not intended to govern ‘secondary’ liability … of persons who facilitate third parties in carrying out illegal communications to the public”.

YouTube was in fact one of the Copyright Directive’s fiercest critics, when it was under debate in the EU institutions.

Tech companies, including YouTube’s parent Google, argued it would place onerous liability on online platforms for infringing content.

AG Saugmandsgaard Øe said platforms are still liable for infringing content hosted on their sites where they have ‘actual knowledge of illegal activity or information’.

And, irrespective of platforms’ liability for the infringing content, rights owners are still able to obtain injunctions that can impose obligations on companies like YouTube, he added.

Kabinet, Stim, YouTube: copyright confusion

WIPR has previously reported on this ever-evolving area of EU copyright law which determines who should be held responsible for the unauthorised broadcasting of infringing content.

Just earlier this year, the CJEU  ruled against Swedish collecting societies Stim and SAMI, and clarified that providing a rental car equipped with a radio was not a “communication to the public” of copyrighted music.

But Tom Kabinet, a Dutch second-hand e-book seller, was last year forced to close after the core of its business model was  adjudged by the CJEU to be illegal under EU copyright law.

The court ruled that the re-sale of an e-book was closer to an unauthorised broadcast of the copyright-protected work, than selling a second-hand physical copy.

That meant that Tom Kabinet’s sale of the e-books infringed the copyright owner’s right to control the communication of the work to the public.

The Dutch website then announced it would be forced to cease operations, as the CJEU had given it “too little room to follow our current path”.

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