European High Court Says Online Platforms Are Not Liable for Copyright Infringement by Users if They Take Appropriate Measures

By‎ Adv. Dotan Hammer

Partner at the Cyber, Privacy & Copyright Group, Pearl Cohen Zedek Latzer Baratz

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The Court of Justice of the European Union (CJEU) has held that operators of online platforms to which users post copyright-protected content are not liable for copyright infringement in such user-posted content if they meet certain conditions. First, they must not contribute to giving access to such content to the public in breach of copyright, beyond merely making those platforms available. Second, they must not play an active role that gives them knowledge of or control over the content posted.

The CJEU’s decision was delivered on a claim brought by a music producer against YouTube after a number of the producer’s recordings were posted on YouTube by users without the producer’s permission. The CJEU’s decision also concerned another claim, brought by the publisher Elsevier against an operator of a platform that hosted copies of Elsevier-owned works posted by users of that platform.

The CJEU held that a platform’s knowledge or control over infringing content can manifest in various ways. First, if it has specific knowledge that a particular piece of protected content is available illegally on its platform and refrains from expeditiously deleting it or blocking access to it. Second, if it “known or ought to know” that users of its platform generally are posting copyright-protected content unlawfully, but “refrains from putting in place the appropriate technological measures that can be expected from a reasonably diligent operator” designed to prevent copyright infringements on the platform. Third, if the operator participates in selecting the copyright infringing content that is posted, or provides tools that are specifically intended for posting copyright-infringing content. Fourth, if it knowingly promotes the posting of copyright-infringing content, for example considering its financial model.

The CJEU also emphasized that mere general knowledge “that protected content is made available illegally on its platform” is insufficient to attract liability to the platform operator.

CLICK HERE to read the CJEU’s decision in C‑682/18 Peterson v. Google LLC et al. and C‑683/18 Elsevier Inc v. Cyando AG.