I'm Not Involved! - AG Øe Opines on the Liability of Intermediaries in Copyright Infringement by Communication to the Public

The freedom of many services on the Internet can create a pile of problems for service providers, particularly when users have a wide berth in the use of those services. YouTube has faced a deluge of issues in relation to copyright over the years, since users are free to upload whatever they please, and those materials are then processed through the Content ID system for any potential copyright infringement. As copyright holders have taken issue on this freedom and have demanded for more direct action, YouTube itself hasn't faced a great deal of litigation around copyright infringement matters. A recent saga in the European courts, however, changed this, where the service provider was alleged to have infringed copyright through its users' actions. The case is now closing on its end in the CJEU, and Advocate General Øe gave their opinion only recently on the case before the decision of the CJEU.  

The case of Frank Peterson v Google LLC concerned music tracks and a live concert that were uploaded onto YouTube in 2008 by the users of the platform from an artist, Sarah Brightman's, album 'A Winter Symphony', in which Mr Peterson owned the copyright. After requests for the removal of the music were unsuccessful, Mr Peterson took Google to court in Germany for copyright infringement requiring the removal of the materials and the acquisition of profits made from the works availability. Google challenged Mr Peterson's actions, which ultimately were referred to the CJEU for further clarification. The CJEU has joined the above case with two similar ones concerning Cyando AG (who operated a file-sharing site onto which potentially infringing works were uploaded) Elsevier (who also sued Google for copyright infringement over the uploading of episodes of the TV show 'Gray's Anatomy) that concerned similar questions on liability.

The above cases raised a number of questions to the CJEU predominantly in relation to the liability of service providers for the uploading of infringing materials onto their platforms. For the sake of brevity, this article will not discuss every nuance of the judgment, so it is advised for anyone wanting a full picture to consult the opinion for themselves if needed. 

The first question asked whether "...the operator of a video-sharing platform and the operator of a file-hosting and ‑sharing platform carry out an act of ‘communication to the public’ within the meaning of Article 3(1) of Directive 2001/29 when a user of their platforms uploads a protected work there". 

The AG first set out what amounts to a 'communication to the public', which is comprised of two separate elements: (i) an act of ‘communication’ of a work and (ii) a ‘public’. In relation to the first element, a person or company carries out an act of 'communication' when it "...transmits a work and thus makes it perceptible at a distance" - or to put in different terms, transmission a work via the Internet or makes a work available on the same. This includes interactive on-demand transmissions where members of the public may access the work from a place and at a time individually chosen by them, such as uploading a work onto a website. As to the second element, a 'public' refers to "...an ‘indeterminate’ and ‘fairly large’ number of persons", including the general public that can access a website. 

The AG swiftly concluded that works shared on YouTube would be communicated to the public under the Directive. The uploading of the works is also not covered by the exceptions under Article 5 of the Directive.

The AG then moved onto considering whether the user uploading a work or platforms like YouTube, carries out the act of communication to the public. He considered that the acts of companies like YouTube are those of an intermediary, and not of a party that communicates a work to the public. This is due to the fact that intermediaries don't decide, on their own initiative, to transmit works to a public, but follow the instructions of their users. The communicator is therefore the user alone. However, if a service provider intervenes actively in the ‘communication to the public’ of works, i.e. selects the content transmitted, determines it in some other way or presents it to the public in such a way that it appears to be its own, the provider would be the communicator to the public. 

The AG then concluded that service providers like YouTube don't communicate works to the public that are uploaded by their users onto their services, as they merely provide the 'physical facilities' necessary for the communication of those works (as envisaged by recital 27). Clearly, passive service providers will not be deemed as such, but ones that take an active role in the selection of materials to be communicated would potentially be in breach.

He ultimately suggested that the answer to the first question is "...the operator of a video-sharing platform and the operator of a file-hosting and -sharing platform do not carry out an act of ‘communication to the public’ within the meaning of Article 3(1)... when a user of their platforms uploads a protected work there". 

The AG then moved onto the second question, which asked "...whether operators such as YouTube and Cyando can benefit from Article 14(1) of Directive 2000/31 with regard to the files that they store at the request of users of their platforms". 

Article 14 provides an exclusion over liability for the storage of files by service providers, which, according to the AG, applies in relation to both primary and secondary liability for the information provided and the activities initiated by those users. In the AG's view Article 14 doesn't apply where a provider communicates to the public its ‘own’ content, but does apply on the other hand when the content communicated was provided by the users of its service. 

After an incredibly exhaustive discussion on the details of Article 14, the AG saw that Article 14 therefore applies to service providers like YouTube would be exempted under the provision in relation to liability for files that have been uploaded by their users. 

The case then moved onto the third question, which asked whether the conditions mentioned in Article 14(1)(a) refer to specific illegal information. The provision relates to the discussion above, as the service providers cannot have knowledge of illegal activities or information on their service in order to benefit from the exemption. This could, potentially, include any infringing materials on those services, and it is important for providers like YouTube to have actual and abstract knowledge or awareness of those materials. 

According to the AG, this knowledge has to be specific and in relation to objective factors relating to specific information on its servers, which then obligates the service provider to remove that material from its servers. To summarize: "...a service provider is obliged diligently to process facts and circumstances brought to its knowledge, in particular by notifications, concerning specific illegal information". They are, however, in no way obligated to actively search for infringing materials before notification. 

Even with that in mind, the awareness factor cannot be used as a shield by service providers and any bad faith would make them lose the exemption altogether. 

In short, the AG noted that "...Article 14(1)(a)...  must be interpreted as meaning that... where a service provider has ‘actual knowledge of illegal activity or information’ and the situation where such a provider is ‘aware of facts or circumstances from which the illegal activity or information is apparent’ — refer to specific illegal information".

The AG then moved onto the fourth question, which asked what the conditions are for rightsholders to be able to apply for an injunction under Article 8(3). 

After some discussion in relation to German legal concepts in terms of conditions, the AG determined that this is possible "...where it is established that third parties infringe its rights through the service provided by the intermediary, without the need to wait for an infringement to take place again and without the need to show improper conduct by the latter". This means that rightsholders won't necessarily have to establish infringement and apply for an injunction each time an infringement occurs, but future infringements could also be prevented through a court order. This could include measures to 'detect and block', which, according to the AG, does not infringe Article 15(1). However, as discussed above, this should not be in order to establish a pre-emptive detection system, as actual knowledge is still required. 

 The AG summarized his position in relation to question four as "...Article 8(3)... precludes rightholders from being able to apply for an injunction against a provider whose service that consists of the storage of information provided by a user is used by third parties to infringe a copyright or related right only if such an infringement has taken place again after notification of a clear infringement has been provided".

The fifth and sixth questions asked whether the operators, such as YouTube, would be regarded as 'infringers' pursuant to Article 13(1). If the operators are not deemed to be 'communicating to the public' they of course would not be classed as infringers. Even so, the legislation does leave a great deal of room for national harmonization in this respect. 

The case is really important in establishing the remit of infringement, and liability over the same, in materials uploaded to services like YouTube by their users. As such the CJEU's decision will be an important one, which will most likely be handed down later this year. This writer will await in with bated breath, as undoubtedly many companies like Google who offer services allowing for user-uploaded materials.