EU copyright law duties clarified for online platforms

Dr. Nils Rauer of Pinsent Masons, the law firm behind Out-Law, said a formal judgment by the Court of Justice of the EU (CJEU) in one case, and a non-binding opinion issued to help the court in another, offer greater clarity on the duties online platforms face when users upload copyright-infringing content to their platforms.

In the first case, the CJEU had to consider what information online platforms are obliged to share with rights holders about their users in cases when those individuals are suspected of having infringed copyright. EU law provides rights holders with qualified rights to request and obtain certain information about such individuals, such as their names and addresses, in order to identify them and pursue enforcement action.

In its ruling, the CJEU considered the wording of the EU Intellectual Property Rights Enforcement Directive (IPRED) and the need to balance the right to information provided for in that legislation with the rights individuals enjoy under EU law, namely the protection of their personal data.

Film rights holder Constantin Film asked YouTube and Google, its parent company, to provide it with information about the registered users who had uploaded films to the video platform without its consent. The information requested included the users' email addresses and telephone numbers, as well as the IP addresses they used. However, YouTube and Google contested the scope of the information requested. The Federal Court of Justice in Germany asked the CJEU to help it interpret EU law to determine what information must be disclosed.

The dispute centred on the definition of 'address' under the IPRED. The CJEU said EU law only requires online platforms to hand over the user's postal address to the rights holders and that the definition does not extend the disclosure requirement to a users' IP address, email address or telephone number.

However, the court said it is open to EU member states to apply national legislation requiring the disclosure of additional information about a user.

"The decision concerns essential issues of law enforcement and is therefore of enormous practical importance," said Rauer. "From a rights holder perspective, in many cases, e-mail addresses or IP addresses can help to identify the infringer of the right when it comes to infringements on the internet."

"The CJEU makes clear, however, that the information rights set out in the IPRED are a minimum requirement. EU member states therefore have the possibility of strengthening the disclosure obligations in national law in the event of copyright infringements. However, the judges said that such a solution must strike a balance between copyright holders' interests on the one hand and the rights of users to data protection on the other," he said.

In the second case, the CJEU has been asked by the German Federal Court of Justice to help it determine the extent to which online platforms can be held liable by rights holders for the illegal upload of copyright-infringing content by their users.

In his opinion, which the CJEU is not bound to follow when it issues its formal judgment in the case in the months ahead, advocate general Henrik Saugmandsgaard Øe said that, under EU copyright laws that currently have effect, online platforms are not directly liable for any copyright infringement by their users. In reaching that conclusion, the advocate general said it is users, not the platforms they upload content to, who are primarily liable for 'communicating' infringing works to the public.

Saugmandsgaard Øe said that, depending on legislation in place at national level across the EU, platforms could be held liable for secondary infringement. However, he said that platforms may have a defence against such claims under the EU's E-Commerce Directive.

Under the EU's existing E-Commerce Directive, online service providers can not be put under any general obligation to police illegal activity on their service. Content hosts are generally protected from liability for material that they neither create nor monitor but simply store or pass on to users of their service. Service providers are not liable for infringement via their services if they do not have "actual knowledge" or an awareness of the illegal activity. In circumstances where they obtain such knowledge, providing a service provider "acts expeditiously to remove or to disable access to the information" they are not liable for that infringement.

The advocate general said platforms will, in principle, only be considered to have acquired knowledge of infringement by users where rights holders share specific information about the illegal acts with them.

The advocate general said, however, that EU copyright law does provide rights holders with a right to seek a court injunction against online platforms in an effort to help them combat online copyright infringement regardless of the platforms' liability for that infringement. If this view is shared by the CJEU judges, the existing approach in Germany will be deemed to breach EU law and require to be updated.