The Court of Justice of the European Union (CJEU) recently ruled on the liability of the Internet Service Providers (ISP) under copyright law in a case involving YouTube.
The case concerned two joined cases relating to audio and video recordings of works protected by copyright. In particular, the European Court of Justice addressed the following questions:
- Are platforms directly responsible for the dissemination of copyrighted works under the InfoSoc Directive?
- What can be the requirements for the application of injunctive relief under the InfoSoc Directive?
The CJEU reviewed its case law and highlighted the need to strike a proper balance between the interests at stake through a case-by-case assessment.
On the first point, the Court provided a list of factors to be considered in order to assess whether the platform acted in a deliberate manner, for example, whether it took all the necessary technical measures to prevent and counteract copyright infringement.
On the second point, the Court stressed that the InfoSoc Directive does not prevent the owner of the infringed copyright from applying for and obtaining injunctive relief against an intermediary service provider, such as an Internet Service Provider, – used by a third party for the infringement of the rights in question – but leaves it to the single EU Member States to decide on the manner and requirements for obtaining such measures.
This decision is part of a series of rulings that have distinguished the liability regime applicable to Internet Service Providers depending on whether they are “active” or “passive” ISPs and whether they, therefore, play an active role in the selection of content on their platform. The regime of ISP liability for YouTube and other Internet Service Providers will change further as a consequence of the implementation of Article 17 of the new Copyright Directive.
On a similar topic, you can read the article “Italian court rules on the copyright liability regime of video sharing platforms” that digs into the case law relating to the difference between active and passive Internet Service Providers.