In a press statement dated 16th July 2020 discussing his Advisory Opinion, Advocate General Henrik Saugmandsgaard Øe advised the CJEU that currently under Directive 2001/29 and Directive 2000/31, content sharing platforms are not directly liable for uploaded material, which infringes the exclusive rights of authors and copyright holders. The AG's opinion seeks to provide guidance for the settlement of two adjoined cases; C-682/18 Frank Peterson v Google LLC, YouTube LLC, YouTube Inc., Google Germany GmbH and C-683/18 Elsevier Inc. v Cyando AG.
The current EU law applicable to the above disputes are Directive 2001/29 on the harmonisation of certain aspects of copyright and related rights in the information society; the Information Society Directive; and the E-Commerce Directive 2000/31. It is clear from the analysis provided in the Advisory Opinion that at present, the new Directive (EU) 2019/790 on copyright and related rights in the Digital Single Market and amending Directives 96/9/EC and 2001/29/EC, does not apply to these two disputes. According to the AG's analysis the applicable Infosoc Directive does not cover secondary liability. Circumstances in which users upload infringing material to content sharing platforms, do not rise to the threshold of direct liability within the context of Directive 2001/29. The opinion states that, "Directive 2001/29 is not intended to govern ‘secondary’ liability, that is to say, the liability of persons who facilitate third parties in carrying out illegal ‘communications to the public’. That liability, which generally involves knowledge of unlawfulness, comes under the national law of the Member States."
The Safe Harbour Liability Regime for Internet Intermediaries
The "Safe Harbour" liability regime is outlined in Articles 12-14 of the E-Commerce Directive. The Advisory Opinion also noted that in principle Article 14 of the E-Commerce Directive 2000/31 may also provide an exemption from strict liability to YouTube and Cyando, in respect of infringing files stored on thier respective platforms. Article 14 of the E-Commerce Directive provides that a hosting intermediary " is not liable for the information stored at the request of a service recipient, " where the provider had no "actual knowledge of illegal activity or information", and where the service recipient is not "under the authority or the control of the provider". Under Articles 12,13 & 14 of Directive 2000/31 which constitute the core of the 'safe harbour' framework, intermediaries such as YouTube and Cyando may be assessed in order to determine whether they are "mere conduits", "caching services" or "hosting services". If they meet the threshold criteria for any one of these categories, they would be entitled to benefit from the safe harbour liability regime. A key characteristic of intermediary activity in relation to content they store, is "passivity". The allowable scope of "passivity" for each type of intermediary is different. The "mere conduit" category is subject to the strictest criteria for "passivity".
Article 12: "Mere conduit"
"1. Where an information society service is provided that consists of the transmission in a communication network of information provided by a recipient of the service, or the provision of access to a communication network, Member States shall ensure that the service provider is not liable for the information transmitted, on condition that the provider:
(a) does not initiate the transmission;
(b) does not select the receiver of the transmission; and
(c) does not select or modify the information contained in the transmission.
2. The acts of transmission and of provision of access referred to in paragraph 1 include the automatic, intermediate and transient storage of the information transmitted in so far as this takes place for the sole purpose of carrying out the transmission in the communication network, and provided that the information is not stored for any period longer than is reasonably necessary for the transmission.
3. This Article shall not affect the possibility for a court or administrative authority, in accordance with Member States' legal systems, of requiring the service provider to terminate or prevent an infringement."
A mere conduit must maintain strictly passive activity in relation to content. However, caching service providers are allowed to take on a comparably less passive role, involving selecting the data and the service recipient, but are restricted from modifying in anyway, the local copy of the data stored on their platform. The threshold for "passivity" in relation to hosting services is even less restrictive. Hosting services are allowed to choose data recipients, in addition to selecting and modifying the data, within the restrictions set out in Article 14 Directive 2000/31.
Internet Intermediary Liability under (EU) Directive 2019/790
The newly minted (EU) Directive 2019/790 on copyright and related rights in the Digital Single Market and amending Directives 96/9/EC and 2001/29/EC or Digital Single Market Directive (DSMD), came into force in June 2019 with an implementation deadline of June 2021 for member states. Article 17 of the DSMD establishes a new copyright liability regime in respect of user uploaded content. Online content sharing service providers (OCSSPs) are regulated by Article 17 of the Directive. Article (2)§6 of the DSMD defines an OCSSP as, " a provider of an information society service of which the main or one of the main purposes is to store and give the public access to a large amount of copyright-protected works or other protected subject matter uploaded by its users, which it organises and promotes for profit-making purposes." Excluded from the definition of OCSSP, within the meaning of the Directive are , "not-for-profit online encyclopedias, not-for-profit educational and scientific repositories, open source software-developing and-sharing platforms."
YouTube falls within the Article 17 definition of an OCSSP. The Article establishes that the aforementioned profit-making intermediaries, are enaged in an act of "communication to the public", when they provide public access to copyrighted works uploaded by users of their platform. In order to ensure that copyright content uploaded by users is not infringing, OCSSPs will be required to formally seek authorisation to communicate these works to the public. The sheer volume of content may make this cumbersome, so the article provides a second cumulative test for avoiding liability, which requires demonstrating best efforts to secure authorisation; ensuring unavailability of uploaded content for which rights holders have provided the requisite information; acting swiftly to remove infringing content and blocking future uploads. The complexity of this liability regime is percived as problematic, in that it will likely trigger OCSSPs to use upload filters to avoid liability and maintain profitable, viable services. Upload filters are also seen as problematic, due to the possibility to use such technology to restrict free speech and information, that is important to the global public interest. If this liability regime if fully implemented in member states, it will reshape the OCSSP business model in the European Union and globally.
Note: The final judgements for C-682/18 Frank Peterson v Google LLC, YouTube LLC, YouTube Inc., Google Germany GmbH and C-683/18 Elsevier Inc. v Cyando AG. are not yet publicly available on CJEU Curia.