In 2019, Directive 2019/790 on copyright and related rights in the digital internal market came into force[1], which is primarily intended to protect copyright. Among other things, it obliges platform operators to ensure that platform users obtain the consent of the rightholders of uploaded works. To ensure this protection, the Member States must ensure that they transpose it into national law by 7 June 2021.

1] Directive (EU) 2019/790 of the European Parliament and of the Council of 17 April 2019 on copyright and related rights in the digital internal market and amending Directives 96/9/EC and 2001/29/EC

 

Two cases are currently pending before the Federal Court of Justice (BGH) in Germany. One is the case (Case C-682/18) where the music producer, Frank Peterson, is taking action against YouTube and its parent company Google. The reason for this is that YouTube users have uploaded several of his sound carriers without his permission. The second case (Case C-683/18) concerns the publishing group Elsevier and the share hosting platform Uploaded. Indeed, several works in which Elsevier holds exclusive rights have been uploaded on this platform without their permission. The Federal Court of Justice has now referred several questions to the Court of Justice of the European Union for a preliminary ruling on these cases. This was because the aforementioned Directive 2019/790 is not yet applicable and clarification of liability is required under the still applicable Directives 2000/31 on electronic commerce [2], 2001/29 on the harmonisation of certain aspects of copyright and related rights in the information society [3] and 2004/48 on the enforcement of intellectual property rights [4].

[2] Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market

3] Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society

4] Directive (EU) 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rightsAdvocate General Saugmandsgaard Øe submits to the Court of Justice of the European Union the independent proposal for a decision that online platforms such as YouTube or Uploaded are not directly liable for unlawfully published content by users. He takes the view that, although it constitutes communication to the public within the meaning of Article 3(1) of Directive 2001/29, it is not YouTube or Cyando, but the user himself who makes the communication. The uploading of content is then automatic and therefore only the user can be prosecuted primarily for unlawful content. This directive does not contain any secondary liability; this is governed by the national law of the Member States, which is why this is also omitted in the present case.

A further possibility for the exemption from liability of operators of online platforms is provided for in Art. 14 of Directive 2000/31. This exemption applies to operators of platforms which store files on behalf of users. However, two criteria must be met for this to be the case. Firstly, according to Art. 14(1)(a) of Directive 2000/31, the operator must not have actual knowledge of the illegal activity or information and, with regard to claims for damages, there must not have been any obvious facts or circumstances relating to the activity or information. Secondly, according to Article 14(1)(b) of Directive 2000/31, the operator must act immediately upon becoming aware of those facts and remove or prevent access to that information. The measure of removing the content or blocking access to the content may only be applied if the content is indeed illegal. Otherwise, the operators of online platforms could indiscriminately make content inaccessible and would thereby assume the role of arbitrators.

In general, the Member States must ensure that certain legal remedies are available for the benefit of rightholders. According to Art. 11 of Directive 2004/48, one such remedy is that the rightholder may request a court order prohibiting the operator of the online platform from further infringing his right. Furthermore, according to Art. 13 of the same Directive, the rightholder must have the possibility to claim possible damages.

Finally, it can be said that these are the main findings of Advocate General Saugmandsgaard Øe for the currently applicable directives. However, this view is not binding on the Court of Justice. It therefore remains to be seen how the European Court of Justice will rule in the present case.

Quelle:

Pressemitteilung Nr. 96/20 des Gerichtshofs der Europäischen Union vom 16. Juli 2020