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30th June 2021

YouTube and Cyando: what does the case mean for hosts and the safe harbour rule?

As mentioned in my previous blog, the YouTube and Cyando judgement was issued by the Grand Chamber of the CJEU on 22 June 2021.

The CJEU was asked to decide upon a number of questions including, whether:

  • YouTube and Cyando were communicating to the public by making illegal or protected content available on their platforms;
  • YouTube and Cyando could rely on the Article 14 hosting defence; and
  • Article 8(3) of the Copyright Directive precludes ‘a situation where the rightholder is not able to obtain an injunction against an intermediary whose services are used by a third party to infringe the rights of that rightholder unless that infringement has previously been notified to that intermediary and that infringement is repeated a right holder from  and also in relation to remedies that can be granted in relation to copyright infringements committed on these platforms’

This blog will mainly focus on the Article 14 hosting defence and the impact of the CJEU decision in relation to this.

However, it is also useful to look at the Courts interpretation of ‘Communication to the Public’ and its divergence from the opinion of the Attorney General before doing so.

Communication to the Public

In relation to the communication to the public question put to the court by the Advocate General, the CJEU considered how Article 3(1) of the Copyright Directive should be interpreted.

It was acknowledged that communication to the public ‘should be understood in a broad sense’ in order to provide a high level of protection to rights holders.

The Court considered that there are two factors that courts should take into account when determining whether a platform is communicating its user-generated content to the public.

These are:

  • ‘the indispensable role played by the platform operator’ in carrying out the communication; and
  • ‘the deliberate nature of that intervention’.

The deliberate nature

The first factor will be satisfied by almost every video-sharing or file-sharing platform.

However, the CJEU did go on to clarify how national courts should interpret the ‘deliberate nature’ of the role performed by the relevant platform.

The court, in citing previous case law re-iterated that a video-sharing or file-sharing platform will have acted deliberately when it intervenes ‘in full knowledge of the consequences of their conduct, to provide access to protected works’.

The CJEU also provided a non-exhaustive list of considerations that should be taken into account by national courts when determining whether the platform is acting deliberately in their intervention. Namely whether the operator:

  • ‘refrains from putting in place the appropriate technological measures that can be expected from a reasonably diligent operator’ to counter copyright infringement;
  • ‘participates in selecting protected content illegally communicated to the public’; and
  • ‘provides tools on its platform specifically intended for the illegal sharing of such content or that it knowingly promotes such sharing’.

However, the CJEU also noted that ‘the mere fact that the operator knows… that protected content is made available illegally on its platform is not sufficient ground to conclude that it intervenes with the purpose of giving internet users access to that content’.

In addition ‘the mere fact that the operator of a video-sharing platform or a file-hosting and sharing platform has the aim of making a profit neither establishes that its intervention in the illegal communication of protected content … was deliberate’.

It is important to note that a different outcome would arise if the platform does not take the ‘measures necessary to make content inaccessible’ following notification from the rights holder that ‘protected content is being communicated illegally to the public via its platform’.

The Article 14 Questions

The questions referred to the CJEU concerned the application of Article 14 of the E-Commerce Directive to ‘the operator of a video sharing or file hosting and sharing platform falls within the scope of that provision o the extent that that activity covers content uploaded to its platform by platform users. If that is the case, that court wishes to know, in essence, whether Article 14(1)(a) of that directive must be interpreted as meaning that, for that operator to be excluded, under that provision, from the exemption from liability provided for in Article 14(1), it must have knowledge of specific illegal acts committed by its users relating to protected content that was uploaded to its platform’.

Essentially the Court was asked whether video sharing (e.g. YouTube) and file hosting and sharing platforms (e.g. Cyando) were able to rely on the hosting exemption as set out in Article 14. In short, the Court decided that they could and re-iterated previous case law on this point.

Importantly, the CJEU noted that it is essential that the provider is an ‘intermediary service provider’ within the meaning of the e-Commerce Directive, i.e. covering only cases in which the activity of the information society service provider is of a mere ‘technical, automatic and passive’ nature meaning that the hosts concerned had no knowledge or control over the content.

This diverges from the opinion of the Attorney General opinion that a platform could rely on the Article 14 defence regardless of the type of liability in question.

The CJEU opinion essentially means that, if the platform directly performs acts which infringe copyright under Article 3(1) of the Copyright Directive (i.e. ‘that either YouTube or Cyando contributes, beyond merely providing its platform, to giving the public access to protected content in breach of copyright’), they would lose the ability to rely on the Article 14 defence.

This is very much in line with Article 17 of the Digital Single Markets Directive. Interestingly, however, the court did not engage directly in the interpretation of Article 17 on this occasion.

This decision does not depart from what has previously been decided by the CJEU and seems to support the ‘safe harbour rule’ where the host is neutral in their role in relation to the transmission of the infringing content.

What happens if such providers use technology to detect infringing material?

The CJEU went on to clarify that as long as the platform operators ‘do not create, select, view or monitor content uploaded to their platforms’ then they would be able to rely on the Article 14(1) defence even if they use ‘technological measures aimed at detecting content which may infringer copyright’.

This would not amount to the host playing an active role which would give it ‘knowledge or control’ of the content being communicated to the public on the hosting platform. It should be noted however, that the above would not apply if that platform ‘seeks specifically to combat such infringements’.

It was also acknowledged that, even if an operator automatically indexes infringing content to recommended videos based on each users’ use did not necessarily mean that the host had specific knowledge of the infringing content.  It follows that these hosts may well be able to rely on the Article 14 exemption.

This is welcome news to hosts around the world as it will alleviate any concerns that using technology to detect copyright infringement will not prevent a host from relying on the ‘safe harbour rule’ as set out in Article 14 of the E-Commerce Directive.

It also seems to re-instate the safe harbour rule in EU law despite the new rules introduced to EU law by the new Digital Single Market Copyright Directive.

To put it simply, as long as hosts do not ‘play an active role of such a kind as to give it knowledge of or control over the content uploaded to its platform’ then they will be able to rely on the hosting exemption. This is already settled EU law and the CJEU decided that it would not change in its interpretation of the Directive here.

Although this judgment does not directly impact UK law, it is certainly helpful to hosts and copyright owners alike to have this area of law clarified.

The future…

It will be interesting to see how cases similar to the above will be interpreted in subsequent cases in the UK.

This decision seems to be in line with the current copyright law in place in the UK despite the implementation of the Digital Single Market Copyright Directive.

Hosts such as YouTube and Cyando will breathe a sigh of relief as, for the time being, they are able to rely on the Article 14 hosting exemption in instances where their users breach EU copyright rules and will therefore incur no liability as a result.