Background of the case

In the dispute which gave rise to the first case (C-682/18), in 2008, Frank Peterson, a music producer, sued YouTube and its legal representative, Google, before the German courts in relation to the posting online on YouTube of several phonograms in which he claimed to hold various rights. In the dispute which gave rise to the second case (C-683/18), in 2013, the publisher, Elsevier, brought an action against Cyando AG concerning the making available online, on its file hosting and sharing platform Uploaded, of various works in respect of which Elsevier is the exclusive rightholder. In both cases, the content was put online by the users of the platforms, YouTube and Cyando, without the authorisation of the rightholders.

The German Supreme Civil and Criminal Court, which is hearing both cases, referred several questions to the Court of Justice of the European Union for a preliminary ruling in order to clarify the liability of the operators of online platforms in relation to copyright protected works which are unlawfully uploaded to those platforms by users.

Decision of the Court of Justice of the European Union

According to the ruling, platforms will be contributing to providing the public with access to copyright infringing content in three situations:

First, where they have concrete knowledge of the unlawful making available of protected content on their platform and refrain from promptly removing or blocking access to it. Secondly, where such an operator, despite knowing or intuiting that protected content is being made unlawfully available to the public through its platform by its users in general, refrains from implementing appropriate technical measures to effectively combat copyright infringement. Third, where an operator participates in the selection of protected content which is unlawfully made available to the public, which may be demonstrated by the fact that the operator has adopted an economic model which encourages users of its platform to make protected content available to the public unlawfully on that platform.

In that regard, the Court of Justice of the European Union considers that YouTube does not intervene either in the creation or in the selection of the content uploaded to its platform by users. It also states that the platform has adopted technical measures aimed at effectively combating copyright infringements, “such as a notification button and a special alert procedure for signalling and requesting the removal of unlawful content”.

The judgment also states that the videos recommended by the platform on the basis of the videos already viewed by the user are not intended to facilitate the unlawful exchange of protected content or to promote such exchange.

With regard to the advertising revenue that YouTube obtains from its platform, according to the judgment, “it does not appear that the economic model of this platform is based on the presence of unlawful content on it, nor that the main purpose or use of YouTube consists of the unlawful exchange of protected content”.

The same is true in Case C-683/18, in that Cyando, the operator of the file hosting and sharing platform Uploaded, also does not create, select, view or control the content uploaded to its platform. Moreover, in its terms of use, it informs its users that they are prohibited from infringing copyright.

On the other hand, the judgment addresses the question whether an online platform operator may benefit from an exemption from liability for protected content which users unlawfully communicate to the public via its platform. In that regard, the Court of Justice of the European Union considers that an operator may benefit from such an exemption from liability provided that it does not play an active role which would confer on it knowledge and control of the content uploaded to its platform.

As regards the fourth question referred for a preliminary ruling in both cases, the European Court states that the holder of copyright or related rights may obtain injunctive relief against an operator whose service has been used by a third party to infringe his rights only where that infringement has been notified to that operator beforehand and the latter has not intervened promptly to remove the content in question or to block access.

Court of Justice of the European Union, Grand Chamber, Judgment of 22 June 2021, C-682/2018