The AG Opinion in YouTube/Cyando: a regressive interpretation of the right of communication to the public

AG Saugmandsgaard Øe

A few days ago, The IPKat reported on Advocate General (AG) Saugmandsgaard Øe’s Opinion in Joined Cases C-682/18 YouTube and C-683/18 Cyando. When the Court of Justice of the European Union (CJEU) issues its judgment, it will have the opportunity to determine:

• Whether user-uploaded content (UUC) platforms like YouTube and Uploaded (the latter is a cyberlocker) do perform acts of communication to the public under Article 3(1) of the InfoSoc Directive [according to the AG, in principle, they do not];
• Whether the hosting safe harbour in Article 14 of the E-commerce Directive is in principle available to these platforms [according to the AG, it is];
• How to interpret Article 14(1)(a) of the E-commerce Directive and Article 8(3) of the InfoSoc Directive.

Possibly (though no questions have been expressly referred on this point), the CJEU will also consider a central aspect of the AG Opinion, that is the relationship between Article 17 of the DSM Directive (not applicable to the facts at hand) and the pre-2019 acquis. According to the AG, Article 17 has introduced into EU law a new liability regime for what the DSM Directive calls ‘online content sharing service providers’, which is not merely a clarification of the pre-existing law as, instead, suggested by recital 64 in the preamble therein.

In light of the foregoing, it is apparent that the resulting CJEU judgment in YouTube/Cyando has the potential to be key to different areas of copyright law and, more generally, the online intermediary regime (currently also under discussion on a policy level, in the context of the forthcoming EU Digital Services Act).

Having read (and digested) the 256-paragraph AG Opinion (if you print it, it’s a mere 62 pages), one also realizes that it would be quite challenging to summarize it in a single blog post. That is why the Court’s press release is so great.

This said, in this blog post I will share my initial thoughts regarding the AG’s construction of the right of communication to the public under Article 3(1) of the InfoSoc Directive.

The starting points

The Opinion appears premised upon two key considerations.

The first is that the present referrals are relevant to users and the expression of their creativity online (see [42]-[43] and also, later on, [241] in respect of Article 13 of the EU Charter). Whilst it is true that both matter in the context of the online construction of copyright’s exclusive rights and online platforms’ responsibilities and liabilities, neither appears key to the background national proceedings. In fact, in both YouTube and Cyando what had been uploaded on the relevant platforms were unmodified full-length versions of, respectively, music tracks from an album and recordings of concerts produced by Mr Peterson and books published by Elsevier.

The second is the refusal, by the AG, to acknowledge that - as matter of fact – the CJEU has absorbed the (formally unharmonized) secondary liability regime into the (harmonized) primary liability regime for copyright infringement (see how he titles Section 2 of his Opinion ...). To this end, as it will be also discussed below, the AG characterizes the earlier CJEU rulings in GS Media, Filmspeler, and Ziggo as a sui generis group of decisions without broader applicability beyond particularly egregious scenarios. 

In addition, like the AG had done in his Opinion in Constantin Film [here and here], the Opinion expressly rejects what it calls a ‘dynamic’ interpretation of the law (in respect of intermediaries’ stay down obligations: see [194]).

Let’s now move on to the core of the AG’s construction of liability under Article 3(1) of the InfoSoc Directive. 

The AG’s view of the right of communication to the public

During last week’s Joint IPKat/BLACA Live Webinar, I called the Opinion ‘regressive’ in this respect. I also stated that I would use ‘regressive’ in a neutral fashion: what I mean by this adjective is that the AG Opinion appears to hold a critical view of how the CJEU has progressively construed the right of communication to the public over the past several years (the AG seems to think that things began going wrong as early as SGAE in 2006, that is the first CJEU decision in the right of communication to the public …) and invites the CJEU to take a step back and (re-)consider what it has ‘done’ all this time.

In this respect, the Opinion echoes – though it does not expressly refers to it – the Opinion of AG Wathelet in GS Media [here], in which he warned the CJEU that the approach taken in Svensson with regard to linking to protected content was – put it bluntly – all wrong.

This said, the following appear to be the key points in relation to which the Opinion can be considered ‘regressive’ from the perspective of Article 3(1) of the InfoSoc Directive.

Transmission v accessibility

First, the AG does not seem to be a huge fan of the ‘accessibility’ approach in the construction of the notion of ‘act of communication’, at least if accessibility is considered in unqualified terms. 

At various points in the Opinion (notably [56] and [97]), he suggests that a communication to the public “corresponds to the transmission of a work”. If a work is simply made available, then – to be an ‘act of communication’ – something more is required: the access in questions must make it “possible for that work to be transmitted, at the request of a member of the public.”

Sui generis decisions

Secondly, as mentioned above, the Opinion considers GS Media, Filmspeler, and Ziggo as belonging to a sui generis group of decisions. The presumption of knowledge established in GS Media would not even have applicability beyond the particular case of linking to unlicensed content (see [113]).

Indispensable/essential intervention

Thirdly, the question of whether the user plays an indispensable/essential role should not be intended as akin to whether the user facilitates access to protected content. Rather, the question of indispensability should be who plays the “more fundamental” role: see [73]. 

In the case of a UUC platform, the user-uploader would play a role that is more fundamental (since they make the content available in the first place) than that of the platform.

Mere provision of facilities

Fourthly (and in turn), the AG adopts a rather generous reading of recital 27 of the InfoSoc Directive and the notion of “mere provision of facilities”. 

In his view, the mere provision of facilities would not mean mere provisions of mere facilities (at [82]). The fact that a platform has some or a significant degree of sophistication (as it is for instance the case of YouTube) should not mean that the platform is not a mere facility.

Watching Grey's Anatomy
instead
of studying (on a lawful copy of)
Gray's Anatomy

Primary v secondary liability 

Fifthly (also this follows from point 3 above), the AG rejects the idea that secondary liability has now been absorbed within the harmonized primary liability regime. 

To this, one may point out to what AG Szpunar wrote in the very opening of his Opinion in Ziggo [at [3]; Katpost here], an approach which the CJEU subsequently endorsed:

The European Commission, whose opinion appears to me to be shared by the United Kingdom of Great Britain and Northern Ireland, contends that liability for sites of this type is a matter of copyright application, which can be resolved not at the level of EU law but under the domestic legal systems of the Member States. Such an approach would, however, mean that liability, and ultimately the scope of the copyright holders’ rights, would depend on the very divergent solutions adopted under the different national legal systems. That would undermine the objective of EU legislation in the relatively abundant field of copyright, which is precisely to harmonise the scope of the rights enjoyed by authors and other rightholders within the single market. That is why the answer to the problems raised in the present case must, in my view, be sought rather in EU law. (emphasis added)

Article 17 of the DSM Directive

Sixthly, as mentioned, the liability regime in Article 17 of the DSM Directive would be a novel regime, which does not have retroactive application. 

In this regard, it is also worth noting that, unlike both Article 17 (which excludes the availability of hosting safe harbour in relation to situation covered by that provision) and what the referring court appears to think by looking at how the referred questions have been phrased, the AG considers that the hosting safe harbour is available irrespective of the type of liability at hand.

All in all

In conclusion, when it comes to UUC platforms, the AG considers that liability for unauthorized acts of communication to the public would subsist in two situations: when the platform is a piracy-focused one (so that decisions like Ziggo would apply) or when the platform presents the content as its own. Let’s now see whether the CJEU agrees.

The full recording of the Joint IPKat/BLACA Live Webinar is available here.