The IPKat has learned that two further cases have just been referred to the Court of Justice of the European Union (CJEU) in the context of proceedings concerning the right of communication to the public under the
InfoSoc Directive, the hosting safe harbour in Article 14 of the
E-commerce Directive and the liability of platform operators (in both cases, the platform at issue is YouTube).
Cheaper by the Dozen? Two further CJEU referrals on YouTube’s ‘active role’
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The more, the merrier.
Also true for CJEU referrals? |
Readers of this blog know that in September 2018, the German Federal Court of Justice made a YouTube, C-682/18) asking, among other things, whether “the operator of an internet video platform on which videos containing content protected by copyright are made publicly accessible by users without the consent of the rightholders carry out an act of communication within the meaning of Article 3(1)” of the InfoSoc Directive, insofar as certain conditions are satisfied.
referral to the CJEU (
Austria’s Oberster Gerichtshof (OGH) has now outdone the FCJ and referred not one, but two cases to the CJEU, both concerning (apparently) very similar questions.
Ellmes Property Services, C-433/19
The first case (Ellmes Property Services, C-433/19) has the operator of an Austrian TV channel as the claimant and YouTube as the defendant. Out of court, YouTube was asked to remove certain videos that showed content owned by the claimant, and complied expeditiously. However, the claimant asked YouTube to ensure that no further videos that contain content owned by him become available on the platform, effectively asking for “notice-and-staydown”. The broadcaster alleges that YouTube plays a central and active role, which has provided it with actual knowledge of infringement. YouTube’s actions would therefore amount to a communication to the public in the sense of Art. 3(1) of the InfoSoc Directive.
YouTube argued that it operates a neutral platform and that infringements were made only by its users and it did not have knowledge of infringement. More interestingly, the platform also asserted that even when its conduct must be considered as an act of communication to the public, it would still be shielded from liability by the hosting provider privilege granted in Art. 14 of the E-Commerce-Dirctive.
In the first instance, the broadcaster came out victorious, but the decision was overturned on appeal. The OGH has now stayed the proceedings (case number OGH 4Ob74/19i) and asked the CJEU a number of questions
[please note that this is a Kat-Translation, the official questions will be updated once they become available in English]:
I. Is Article 14(1) of Directive 2000/31/EC to be interpreted as meaning that the operator of an online video platform, as a host service provider, assumes an active role which results in the loss of the liability privilege by providing or offering to the user the following accompanying services in addition to the provision of storage space for third-party content?
– Suggest videos by topic;
– Facilitate visitors’ searches for titles or content by providing an electronic table of contents where the user can specify the titles or content;
– Providing online instructions on how to use the Service (“Help”);
– with the user’s consent, combining the video uploaded by the user with advertising (but not self-promotion by the platform operator) at the user’s discretion of the target group?
II. Is a national legal provision under which the duty of a host service provider (intermediary) who plays an active role as an accessory to the infringement of the rights of its users, to cease and desist exists only on condition that the accessory has deliberately encouraged the infringement of the user’s rights compatible with the first sentence of Article 11 of Directive 2004/48/EC, or is that provision to be interpreted as meaning that the Member States may not make claims for injunctive relief by rightholders against intermediaries dependent on the provider’s deliberate encouragement of the infringement?
III. Are the provisions in Articles 12 to 14 of Directive 2000/31/EC concerning the liability of intermediaries to be assessed as horizontal limitations of liability which benefit each intermediary in a neutral role even if his activity is to be classified under copyright law as an act of communication to the public committed by himself?
IV. Are Article 14(3) (also Article 12(3) and Article 13(2)) of Directive 2000/31/EC , Article 8(3) of Directive 2001/29/EC and the third sentence of Article 11 of Directive 2004/48/EC to be interpreted as meaning that a host service provider (intermediary) in a neutral role is also entitled to the liability privilege under Article 14(1) of Directive 2000/31/EC in the event of a claim for injunctive relief brought against it and is therefore also a court injunction against such an intermediary permissible only if the intermediary has actual knowledge of the unlawful activity or information, or is such a court injunction permissible if the host service provider, after a specific warning, does not immediately remove or block the content which has been objected to as infringing and the infringement is confirmed in the court proceedings?
The OGH highlighted that it was aware of the earlier YouTube referral (C-682/18) and that some of the questions overlap. However, it still felt the need to ask additional questions.
Puls 4 TV, C-500/19
The second case (
Puls 4 TV,
C-500/19) has a very similar background. A summary of the proceedings is available on the
Kluwer Copyright Blog. The questions referred to the CJEU by the Austrian Court have not been made available yet. This post will be updated once they become public. However, given the legal and factual overlap in previous instances, this former GuestKat believes they will be mostly identical and is indeed surprised that another referral was made.
