Advocate General Øe: Online platform operators not liable for illegal uploading of protected works
According to Court of Justice of the EU Advocate General Saugmandsgaard Øe in cases C-682/18 Frank Peterson v Google LLC, YouTube LLC, YouTube Inc., Google Germany GmbH and C-683/18 Elsevier Inc. v Cyando AG, as EU law currently stands, online platform operators, such as YouTube and Uploaded, are not directly liable for the illegal uploading of protected works by the users of those platforms.
The cases in question deal with user uploads to Youtube and Uploaded of protected works without the consent of the rights holders. According to the Advocate General, online platform operators in this case are an intermediary providing physical facilities which enable users to carry out a ‘communication to the public’. Any ‘primary’ liability arising from that ‘communication’ is therefore borne, as a rule, solely by those users.
The above opinion is given under the current EU law, not the Directive 2019/790 on copyright and related rights in the Digital Single Market which introduces a new liability regime for online platform operators in cases of illegally uploaded works by the users.