Who Won the YouTube CJEU Case?

Three questions to Dr. Eleonora Rosati, Full Professor of Intellectual Property Law and Director of the Institute for Intellectual Property and Market Law (IFIM) at Stockholm University

Last month, the Court of Justice of the European Union handed down its ruling in two cases relating to internet platforms’ liability in relation to copyright infringement by users. One case concerned music videos on YouTube, the other medical text books on a file-hosting platform called Uploading. Both cases were referred by German courts. Netopia turned to Dr Eleonora Rosati to better understand the ruling.

The ruling was broadcast as a win for YouTube. Do you agree? Who won the case?

I am not sure that the situation is necessarily necessarily so clear-cut.

CJEU is not a judge of the facts: it will be for the national court to apply the relevant legal teachings ….and determine if YouTube is liable or not

In light of the information that the referring court provided to the Court of Justice, the latter appeared inclined to consider that a platform like YouTube would not communicate to the public, at least under Article 3 of the InfoSoc Directive.

This said, the CJEU is not a judge of the facts: it will be for the national court to apply the relevant legal teachings of the ruling to the circumstances at hand and determine if YouTube is liable or not.

As a matter of fact, the ruling considers both the scenario in which the referring court finds YouTube liable and the scenario in which YouTube is not liable.

The Digital Single Market-directive’s (in)famous Article 17 is close to the cases the CJEU looked at. Does this ruling have any relevance once the DSM-directive is implemented?

Absolutely. I give 3 examples.

First, it serves to determine at what conditions those internet actors that do not qualify for the application of Article 17 because they are not online content sharing service providers (OCSSP) are to be regarded as performing acts of communication to the public.

Secondly, it is directly relevant to the application of Article 17 because it clarifies at what conditions the hosting safe harbour is available.

Thirdly, there are parts of the judgment that may indirectly serve to interpret the notion of ‘best efforts’ in Article 17(4).

 

It seems the ruling raises almost as many questions as it answers. When will we see a final decision for online platforms and rights-holders?

[…] upcoming legislation like the Digital Services Act and the Digital Markets Act, all indicate that things will remain ‘lively’ for while

I guess that the answer is: not in the immediate future!

It is likely that there will be significant litigation surrounding the interpretation and application of inter alia Article 17, provided that it survives the Polish challenge.

The inherent complexity of that provision, together with the ever-evolving advancement of technology, as well as upcoming legislation like the Digital Services Act and the Digital Markets Act, all indicate that things will remain ‘lively’ for while.

 

Dr. Eleonora Rosati is Full Professor of Intellectual Property Law and Director of the Institute for Intellectual Property and Market Law (IFIM) at Stockholm University. She is also Of Counsel at Bird & Bird, Guest Professor at CEIPI-Université de Strasbourg, Associate of the Centre for Intellectual Property and Information Law (CIPIL) at the University of Cambridge, and Research Associate at EDHEC Business School. A long-standing contributor to The IPKat and an Editor of the Journal of Intellectual Property Law & Practice (Oxford University Press), Eleonora is the author of several articles and books on IP issues, including – most recently – Copyright and the Court of Justice of the European Union (Oxford University Press:2019) and Copyright in the Digital Single Market – Article-by-Article Commentary to the Provisions of Directive 2019/790 (Oxford University Press:2021). In 2018, Managing Intellectual Property included her among the ’50 Most Influential People in IP’; in 2020, World Intellectual Property Review listed Eleonora among its ‘Influential Women in IP’.