The Advocate General’s Opinion in Joined Cases YouTube and Uploaded (C-628/18 and C-683/18, 16 July 2020) considers whether the YouTube and Uploaded platforms are responsible for copyright infringement by communication to the public, whether the hosting privilege is available to them and whether rightholders can obtain injunctive relief against them. The underlying facts of the cases are somewhat different. In particular, YouTube provides a platform for user generated content whilst Uploaded is a so-called ‘cyberlocker’.

On the issue of primary liability, the AG finds that neither YouTube nor Uploaded infringe the communication to the public right under Article 3 of the Information Society Directive (2001/29/EC) in respect of user uploads of unauthorised content.  In the AG’s view, the infringing act is by the uploading user: it is the user that initiates the communication and thereby plays an “essential role” in providing access to unauthorised copyright works. By contrast, the AG characterises the role of the platforms as being one of ‘mere facilitation’.

The AG notes that this finding does “not rule out the possibility of some form of secondary liability on the part of those operators”, although this would be depend on the national laws of individual Member States.  That said, the AG concludes that both platforms, in principle, benefit from the hosting ‘safe harbour’ contained in Article 14 of the E-Commerce Directive (2000/31/EC) in respect of the activities at issue.

In respect of intermediary injunctions under Article 8(3) of the Information Society Directive, the AG observes that this remedy is available regardless of platform liability.  This is not a new finding, although it is a helpful reminder.  He finds that the German concept of Störerhaftung (disturber liability), to the extent it is dependent on the conduct of the intermediary, is not sufficient in implementing Article 8(3). Under German law, Störerhaftung must not therefore operate to prevent rightholders who have no other legal basis under German law, from applying for intermediary injunctions.  The AG also identifies, following consideration of the decision in Case C-18/18 Glawischnig-Piesczek v Facebook Ireland (see our analysis here), that the general monitoring obligation under Article 15 of the E-Commerce Directive does not preclude a ‘stay down’ obligation.

Finally, the AG makes observations about Article 17 of the Directive on Copyright in the Digital Single Market (2019/790).  That provision concerns the liability position of so-called online content sharing service providers (OCSSPs) Article 17 is stated in the DSM Directive to be a clarification of existing law: it confirms that OCSSPs perform acts of communication to the public under Article 3 of the 2001/29 Directive and do not qualify for the liability privilege in Article 14 of the E-Commerce Directive.  However, the AG suggests (wrongly in our view) that Article 17 creates a “new liability regime”.  Based on the AG’s rationale, YouTube would be subject to the scheme and obligations under Article 17, whilst Uploaded, as a cyberlocker, is expressly excluded from the ambit of Article 17 but, according to the AG, would also escape the notice and action requirements and due diligence standards that flow from Article 14.

Overall, the Opinion marks an unhelpful step backwards for rightsholders and sits awkwardly with earlier case law on communication to the public and the safe harbour provisions.  The AG appears to reject existing case law on third party services whose business models are built on enabling user infringement (see Filmspeler (C-527/15), GSMedia (C-160/15), Ziggo (C-610/15)). In the alternative, the AG distinguishes these cases in order to find that YouTube and Uploaded do not infringe.  The Opinion is not binding on the Court of Justice of the European Union and, indeed, it would be surprising if the Court now rowed back from the body of case law on communication to the public that is has been developing over a number of years.

Whilst the case will primarily be of interest to content owners, the ultimate decision in YouTube/Uploaded will provide important further guidance on the obligations of online platforms and will further inform the debate on the scope of the E-Commerce Directive ‘safe harbour’ provisions that is taking place in the context of the Digital Services Act.