Adviser EU Court: YouTube is not yet directly liable for illegal uploads
Under current European rules, platforms such as YouTube are not yet directly liable for uploading illegal files, advises the Advocate General of the European Court of Justice.
Platforms such as YouTube and Uploaded do not perform ‘communication to the public’ under current EU rules when users upload files that infringe copyrights, according to Advocate General Henrik Saugmandsgaard Øe of the European Court of Justice in his opinion. According to him, the upload takes place automatically if it is initiated by a user, without a platform checking it and if such a check takes place, this does not mean that the platform itself has the intention to communicate the content to the public has.
Due to this role of intermediary, such platforms would not be directly liable for illegal uploads. According to the Advocate General, the European Directive 2001/29 on copyright does not include indirect liability for facilitating illegal communication to the public. To do this, a party should have knowledge of the illegality of the uploads. Platforms could therefore be directly liable if they have been made aware that uploads are illegal and do not delete them or make access to them impossible.
The AG advises in two cases that the German Bundesgerichtshof referred to the European Court of Justice. One case involved putting tracks from Sarah Brightman’s ‘A Winter Symphony’ on YouTube without permission. The other case was brought by publisher Elsevier and concerned Cyando’s Uploaded platform, which allegedly uses books like Grey’s Anatomy for Students, Atlas of Human Anatomy and Campbell-Walsh Urology.
Saugmandsgaard Øe does note that the old directives 2000/31, 2000/29 and 2004/48 are still specifically applicable here. Member States must implement the new Copyright Directive 2019/790 in their national laws by June 2021. This means that platforms are obliged to request permission from rights holders when uploading copyrighted files. Critics expect these rules to lead to upload filters.