Is YouTube out of the woods?

The general position under copyright law is that the owner of the copyright in a work has the exclusive right to do certain acts in relation to that work.

For example, under English and EU law, the copyright owner has the exclusive right to copy the work, issue copies of the work to the public, rent/lend the work to the public, perform/show/play the work in public, communicate the work to the public, and make an adaptation of the work.

The inherent open and accessible nature of the internet is often at odds with the monopolistic aspects of copyright law which aim to control access to, and use/exploitation of, copyright works. This tension has prompted legislatures and courts to consider the scope of the responsibility/liability on websites/platforms like YouTube when copyright content is uploaded without the consent of the copyright owner.

Last month, the Court of Justice of the EU found that YouTube and other similar websites/platforms are not liable in certain circumstances where copyright works uploaded to the internet without the consent of the copyright owner.

In one case, music producer Frank Peterson sued YouTube in response to unauthorised uploads of content for which he owned the copyright (case C-682/18). In a second case, publishing group Elsevier sued file-hosting service Cyando users similarly uploaded several copyright works without its consent (case C-683/18).

The EU court held, giving judgement in relation to both cases, that “as it currently stands, operators of online platforms do not, in principle, themselves make a communication to the public of copyright-protected content illegally posted online by users of those platforms” but that “those operators do make such a communication in breach of copyright where they contribute, beyond merely making those platforms available, to giving access to such content to the public.”

The key question, therefore, is what constitutes ‘contributing’ and going beyond merely making the platforms available?

One situation where the likes of YouTube may be liable is where such sites are made aware of copyright breaches and fail to act expeditiously to remove or block the content and ensure the infringements do not reoccur.

YouTube et al. may also be liable for copyright violations if they refrain from putting in place technological tools to credibly and effectively fight against illegal uploads.

Briffa comment

YouTube and its ilk are probably safe in the sense that the EU courts are unlikely to impose obligations in respect of copyright-infringing activities that are beyond the reasonable control of the website/platform. Moreover, the website/platform is unlikely to be held responsible provided it can show that its role was truly purely passive.

However, this judgement does indicate a willingness on the part of the EU courts to impose substantial and potentially onerous and expensive obligations on websites/platforms. The obligation to respond quicky to copyright complaints likely requires a highly sophisticated and resource-intensive complaints responding investigation, analysis and reporting system. Moreover, the obligation to put technological solutions in place to counter copyright-infringing uploads is also likely to require substantial resources to constantly develop and maintain.

Ultimately, judgements like this one may be prove to be good news, both for websites/platforms like YouTube, and for content/copyright owners like Peterson and Elsevier. In the case of the former, all the investment required to put efficient complaints systems and technological tools in place may function as a significant barrier to entry and make it more difficult to unseat incumbents operating in the market. In the case of the latter, the new systems/tools put in place by the likes of YouTube will hopefully disincentivise copyright-infringing uploads in the first place, but thereafter will hopefully make it easier for content/copyright owners to enforce and monetise their rights online.

Briffa are specialists in all aspects of intellectual property and information technology law, including the copyright enforcement and commercialisation, online and offline. If you have a copyright issues or another IP issues that you would like to discuss, we would love to hear from you. We offer free consultations to all new clients. You can contact us on 020-7288-6003 or info@briffa.com.

Written by Éamon Chawke, Partner