SOURCE: Monthly Case-law Digest - June 2021
Reference for a preliminary ruling – Intellectual property – Copyright and related rights – Making available and management of a video-sharing platform or a file-hosting and -sharing platform – Liability of the operator for infringements of intellectual property rights by users of its platform – Directive 2001/29/EC – Article 3 and Article 8(3) – Concept of ‘communication to the public’ – Directive 2000/31/EC – Articles 14 and 15 – Conditions for exemption from liability – No knowledge of specific infringements – Notification of such infringements as a condition for obtaining an injunction
In the dispute giving rise to the first case (C-682/18), Frank Peterson, a music producer, is bringing an action against YouTube and its legal representative Google before the German courts in respect of the posting online, on YouTube, in 2008, of a number of recordings over which he claims to hold various rights. Those recordings were posted by users of that platform without his permission.
They are songs from the album A Winter Symphony by Sarah Brightman and private audio recordings made during concerts on her ‘Symphony Tour’. In the dispute giving rise to the second case (C-683/18), the publisher Elsevier is bringing an action against Cyando before the German courts in respect of the posting online, on the ‘Uploaded’ filehosting and -sharing platform, in 2013, of various works over which Elsevier holds exclusive rights. Those works were posted by users of that platform without its permission. They are Gray’s Anatomy for Students, Atlas of Human Anatomy and Campbell-Walsh Urology, which could be consulted on Uploaded via the link collections rehabgate.com, avaxhome.ws and bookarchive.ws.
The Bundesgerichtshof (Federal Court of Justice, Germany), which is hearing the two cases, referred a number of questions to the Court for a preliminary ruling so that the latter can provide clarification on, inter alia, the liability of the operators of online platforms as regards copyright-protected works illegally posted online on such platforms by platform users.
The Court has examined that liability under the set of rules, applicable at the material time, under Directive 2001/29 on copyright, Directive 2000/31 on electronic commerce, and Directive 2004/48 on the enforcement of copyright. The questions referred do not concern the set of rules established by Directive 2019/790 relating to copyright and related rights in the Digital Single Market, which came into force subsequently.
In its Grand Chamber judgment, the Court finds, inter alia, that, as EU law currently stands, operators of online platforms do not themselves make a communication to the public of copyright-protected content illegally posted online by users of those platforms unless those operators contribute, beyond merely making those platforms available, to giving access to such content to the public in breach of copyright. Moreover, the Court finds that such operators may benefit from the exemption from liability under Directive 2000/31 on electronic commerce unless they play an active role of such a kind as to give them knowledge of or control over the content uploaded to their platform.
Assessment by the Court
In the first place, the Court examines the question whether the operator of a video-sharing platform or a file-hosting and -sharing platform on which users can illegally make protected content available to the public itself carries out, in circumstances such as those at issue in the present cases, a ‘communication to the public’ of that content within the meaning of Directive 2001/29 on copyright. 71 At the outset, the Court states the objectives and definition of the concept of a ‘communication to the public’ as well as the associated criteria which must be taken into account when making an individual assessment of what that concept means.
Amongst those criteria, the Court emphasises the indispensable role played by the platform operator and the deliberate nature of its intervention. That platform operator makes an ‘act of communication’ when it intervenes, in full knowledge of the consequences of its action, to give its customers access to a protected work, particularly where, in the absence of that intervention, those customers would not, in principle, be able to enjoy the broadcast work.
In that context, the Court finds that the operator of a video-sharing platform or a file-hosting and - sharing platform, on which users can illegally make protected content available to the public, does not make a ‘communication to the public’ of that content, within the meaning of Directive 2001/29 on copyright, unless it contributes, beyond merely making that platform available, to giving access to such content to the public in breach of copyright.
That is the case, inter alia, where that operator has specific knowledge that protected content is available illegally on its platform and refrains from expeditiously deleting it or blocking access to it, or where that operator, despite the fact that it knows or ought to know, in a general sense, that users of its platform are making protected content available to the public illegally via its platform, refrains from putting in place the appropriate technological measures that can be expected from a reasonably diligent operator in its situation in order to counter credibly and effectively copyright infringements on that platform, or where that operator participates in selecting protected content illegally communicated to the public, provides tools on its platform specifically intended for the illegal sharing of such content or knowingly promotes such sharing, which may be attested by the fact that that operator has adopted a financial model that encourages users of its platform illegally to communicate protected content to the public via that platform.
In the second place, the Court looks at the question whether the operator of online platforms may benefit from the exemption from liability, provided for in Directive 2000/31 on electronic commerce, in respect of protected content which users illegally communicate to the public via its platform. In that context, the Court examines whether the role played by that operator is neutral, that is to say, whether its conduct is merely technical, automatic and passive, which means that it has no knowledge of or control over the content it stores, or whether, on the contrary, that operator plays an active role that gives it knowledge of or control over that content. In that regard, the Court finds that such an operator can benefit from the exemption from liability provided that it does not play an active role of such a kind as to give it knowledge of or control over the content uploaded to its platform. On that point, the Court specifies that, for such an operator to be excluded from the exemption from liability provided for in that directive, it must have knowledge of or awareness of specific illegal acts committed by its users relating to protected content that was uploaded to its platform.
In the third place, the Court clarifies the circumstances in which, under Directive 2001/29 on copyright, 73 rightholders can obtain injunctions against operators of online platforms. It finds that that directive does not preclude a situation under national law whereby a copyright holder or the holder of a related right may not obtain an injunction against an operator whose service has been used by a third party to infringe his or her right, that operator having had no knowledge or awareness of that infringement, within the meaning of Directive 2000/31 on electronic commerce, unless, before court proceedings are commenced, that infringement has first been notified to that operator and the latter has failed to intervene expeditiously in order to remove the content in question or to block access to it and to ensure that such infringements do not recur.
It is, however, for the national courts to satisfy themselves, when applying such a condition, that that condition does not result in the actual cessation of the infringement being delayed in such a way as to cause disproportionate damage to the right holder.
SOURCE: Court of Justice of the European Union, Press Release, No 162/19, 19 December '19
(Reference for a preliminary ruling — Directive 2000/31/EC — Information society services — Directive 2006/123/EC — Services — Connection of hosts, whether businesses or individuals, with accommodation to rent with persons seeking that type of accommodation — Qualification — National legislation imposing certain restrictions on the exercise of the profession of real estate agent — Directive 2000/31/EC — Article 3(4)(b), second indent — Obligation to give notification of measures restricting the freedom to provide information society services — Failure to give notification — Enforceability — Criminal proceedings with an ancillary civil action)
By its judgment of 19 December 2019, Airbnb Ireland (C-390/18), the Grand Chamber of the Court held, first, that an intermediation service which, by means of an electronic platform, is intended to connect, for remuneration, potential guests with professional or non-professional hosts offering short-term accommodation services, while also providing a certain number of services ancillary to that intermediation service, must be classified as an ‘information society service’ under Directive 2000/31 on electronic commerce. Secondly, the Court found that, in criminal proceedings with an ancillary civil action, an individual may oppose the application to him or her of measures of a Member State restricting the freedom to provide such a service which that individual provides from another Member State, where those measures were not notified in accordance with the second indent of Article 3(4)(b) of that directive.
The dispute in the main proceedings concerns criminal proceedings brought in France following a complaint, together with an application to be joined as a civil party to the proceedings, lodged against Airbnb Ireland by the Association pour un hébergement et un tourisme professionnels (Association for professional tourism and accommodation, AHTOP). Airbnb Ireland is an Irish company that manages an electronic platform which, in return for payment of a commission, makes it possible to establish contact, particularly in France, between professional hosts and private individuals offering short-term accommodation services and people looking for such accommodation. In addition, Airbnb Ireland offers those hosts ancillary services, such as a format for setting out the content of their offer, civil liability insurance, a tool for estimating their rental price or payment services for the provision of those services.
AHTOP which lodged the complaint against Airbnb Ireland maintained that that company did not merely connect two parties through its platform of the same name; it also acted as an estate agent without holding a professional licence, in breach of the act known as the ‘Hoguet Law’ which applies to the activities of real estate professionals in France. For its part, Airbnb claimed that, on any view, Directive 2000/31 precluded that legislation.
Asked about the classification of the intermediation service provided by Airbnb Ireland, the Court pointed out, referring to the judgment in Asociación Profesional Elite Taxi, that if an intermediation service satisfies the conditions laid down in Article 1(1)(b) of Directive 2015/1535, to which Article 2(a) of Directive 2000/31 refers, then, in principle, it is an ‘information society service’, distinct from the subsequent service to which it relates. However, this will not be the case.
if it appears that that intermediation service forms an integral part of an overall service whose main component is a service coming under another legal classification.
In the present case, the Court found that an intermediation service such as that provided by Airbnb Ireland satisfied those conditions, and the nature of the links between the intermediation service and the provision of accommodation did not justify departing from the classification of that intermediation service as an ‘information society service’ and thus the application of Directive 2000/31 to that service.
To underline the separate nature of such an intermediation service in relation to the accommodation services to which it relates, the Court noted, first, that that service is not aimed only at providing immediate accommodation services, but rather it consists essentially of providing a tool for presenting and finding accommodation for rent, thereby facilitating the conclusion of future rental agreements. Therefore, that type of service cannot be regarded as being merely ancillary to an overall accommodation service. Second, the Court pointed out that an intermediation service, such as the one provided by Airbnb Ireland, is in no way indispensable to the provision of accommodation services, since the guests and hosts have a number of other channels in that respect, some of which are long-standing. Finally, third, the Court stated that there was nothing in the file to indicate that Airbnb sets or caps the amount of the rents charged by the hosts using that platform.
The Court further stated that the other services offered by Airbnb Ireland do not call that finding into question, since the various services provided are merely ancillary to the intermediation service provided by that company. In addition, it stated that, unlike the intermediation services at issue in the judgments in Asociación Profesional Elite Taxi and Uber France, neither that intermediation service nor the ancillary services offered by Airbnb Ireland make it possible to establish the existence of a decisive influence exercised by that company over the accommodation services to which its activity relates, with regard both to determining the rental price charged and selecting the hosts or accommodation for rent on its platform.
In addition, the Court examined whether Airbnb Ireland may, in the main proceedings, oppose the application to that company of a law restricting the freedom to provide information society services provided by an operator from another Member State, such as the Hoguet Law, on the ground that that law was not notified by France in accordance with the second indent of Article 3(4) of Directive 2000/31. The Court stated that the fact that that law predates the entry into force of Directive 2000/31 cannot have had the consequence of freeing France of its notification obligation. Next, drawing on the reasoning followed in the judgment in CIA Security International, 5 it found that that obligation, which constitutes a substantial procedural requirement, must be recognised as having direct effect. It therefore concluded that a Member State’s failure to fulfil its obligation to give notification of such a measure may be relied on by an individual, not only in criminal proceedings brought against that individual, but also in a claim for damages brought by another individual who has been joined as civil party.