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 carry out ‘communication to the public’ under current EU rules if users upload files that infringe copyrights, according to European Court of Justice advocate general Henrik Saugmandsgaard Øe in his advice. According to him, the upload happens automatically if it is initiated by a user, without a platform doing a check on this 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.
Because of this intermediary role, such platforms would not be directly responsible for illegal uploads. The European Directive 2001/29 According to the Advocate General, copyright does not include indirect liability for facilitating illegal communication to the public. For that, a party should have knowledge about the illegality of the uploads. Platforms could therefore be directly liable if they were made aware that uploads are illegal and do not delete them or make access to them impossible.
The AG advises on this in two cases that the German Bundesgerichtshof referred to the European Court of Justice. One case involved putting the tracks of ‘A Winter Symphony’ by artist Sarah Brightman on YouTube without permission. The other case was brought up by publisher Elsevier and involved Cyando’s Uploaded platform, which would include books such as ‘Grey’s Anatomy for Students’, ‘Atlas of Human Anatomy’ and ‘Campbell-Walsh Urology’ illegally.
Saugmandsgaard Øe notes that the old Directives 2000/31, 2000/29 and 2004/48 specifically apply here. Member States must provide the new by June 2021 directive 2019/790 for copyrights in their national laws. This will oblige platforms to request permission from rights holders when uploading copyrighted files. Critics expect these rules to be up to uploadfilters to lead.
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