In a judgment dated 22 June 2021 in case C-682/18, the EU Court of Justice found that Youtube was not responsible for infringements of intellectual property rights, committed by users of the platform, who made protected content available to the public illegally. However, by no means, is this is rule for all providers of similar services, but the courts will have to decide on the existence of liability depending on the circumstances of each individual case. The EU Court of Justice has set several clearly defined conditions, which the courts will be able to apply in the future to other platforms for content sharing, social networks, online commerce, etc.
Economic model of the platform
The EU Court has ruled that the economic model of the Youtube platform is not based on the presence of illegal content on it, that this model is not intended to encourage users to upload such content nor is the goal or main use of YouTube illegal sharing of protected content (as opposed to The Pirate Bay case, in which the Court found that the operator has a key role to play in communicating illegal content to the public).
Interpretation of the term "communication to the public" and measures to prevent copyright infringement
The Court interpreted Article 3 paragraph 1 of the Copyright Directive, in a way that the platform operator does not perform the act of "communicating to the public" of protected content simply by making the platform available to users, but the operator's action will qualify as a communication act only if:
- the operator has specific knowledge about the illegal providing of protected content on its platform and does not urgently remove or disable access to such content, or;
- if the operator does not implement the appropriate technical measures that can be expected from an average attentive operator in its situation, in order to effectively combat copyright infringement on its platform, or;
- if it offers mediums on its platform that are specifically intended for the illegal sharing of such content or if it knowingly encourages such sharing.
In conclusion, according to the position of the EU Court of Justice, in accordance with Art. 15 paragraph 1 of the E-Commerce Directive, no general obligation to monitor the content they transmit or store can be imposed on the service providers concerned, nor a general obligation to actively seek facts or circumstances that would indicate illegal activities. But, on the other hand, based on Art. 14 paragraph 1 (b) of the E-Commerce Directive, these service providers must, as soon as they become aware of illegal information, act swiftly to remove or deny access to such information, otherwise they could still be held liable for the copyright infringement.