According to an expert opinion, operators of online platforms do not currently have to be directly liable for a violation of copyright. This emerges from an opinion that Advocate General Saugmandsgaard Øe submitted to the Court of Justice of the European Union (ECJ) in Opinion on two cases.
According to the court, a judgment is still pending on Thursday and will be pronounced later. The opinion is not binding on the judges.
There are two specific cases: A music producer took legal action against the video platform YouTube and the parent company Google in German courts because users were said to have uploaded sound carriers in 2008 without his permission. The producer is said to have rights to the recordings. In the second case, the science publishing group Elsevier also defended before German courts that several works were uploaded to Cyando’s uploaded sharehosting platform, in which only the publisher holds the rights. According to the court, the whole thing is said to have reached the platform without the publisher’s permission.
The Federal Court of Justice in Karlsruhe, which deals with these legal cases, had asked the ECJ questions about a preliminary ruling with a view to EU law. The European Court of Justice does not rule on the national legal dispute.
The report also refers to an EU directive on copyright, which introduces a new specific liability regulation for works for operators of online platforms. Each country must transpose this directive into national law by June 2021. It obliges operators to obtain permission from rightholders for the works put online by users – for example with license agreements. According to the report, this directive is not yet applicable in the current legal cases.
The Advocate General is therefore of the opinion that operators of the platforms are not directly liable for the illegal uploading of protected works by users. An operator himself does not “publicly display” the works, but basically has the role of an intermediary. The primary liability usually affects the users.
At the same time, the lawyer emphasized that rights holders could obtain legal orders against operators in accordance with the applicable EU law to oblige them to do something – regardless of the question of liability. This could mean, for example, that content has to be removed from the platform, even though the operator is not liable at the same time.
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