Online Copyright Infringement: Liability of Internet Service Providers and the Latest Legal Developments

Luisa Grillo discusses the recent draft bill regarding online copyright infringement and how the increasing levels of attention on this issue is a positive step in protecting and enforcing IP rights in a digital world.

With the rapid advancement of technology and the increasing reliance on electronic communication networks, the issue of online copyright infringement has become a growing concern. The illegal dissemination of copyrighted content through these networks not only affects the rights of copyright owners, but also undermines the protection of intellectual property rights in the digital age. To address this issue, several provisions have been passed to prevent and suppress the unlawful distribution of copyrighted content through electronic communication networks.

In recent years, there have been several high-profile cases that have shed light on the liability of internet service providers (ISPs) for online copyright infringement.

A 2021 ruling in the cases of Frank Peterson v. Google LLC and Others and Elsevier Inc. v. Cyando AG, commonly referred to as the “Youtube case,” has brought renewed attention to the issue.

The joined cases C-682/18 and C-683/18, which were heard by the Court of Justice of the European Union (CJEU) on the 22nd of June 2021, saw Google – YouTube as the defendants in legal disputes brought by Elsevier and Cyando, respectively. These cases dealt with the issue of copyright infringement on the popular video-sharing platform and the liability of the platform’s operators.

Elsevier, a publisher of scientific, technical, and medical journals, brought a case against Google – YouTube for copyright infringement. Elsevier claimed that the platform’s operators had not taken sufficient measures to prevent copyrighted content from being uploaded to the platform, and that they had failed to remove infringing content once it had been brought to their attention.

Cyando, a company that specialises in providing online services for the distribution and promotion of music, brought a similar case against Google – YouTube. Cyando argued that the platform’s operators had not taken adequate measures to prevent the unauthorized distribution of copyrighted music on the platform.

Both Elsevier and Cyando claimed that Google – YouTube was liable for the copyright infringement of its users because it provided the means for users to upload and share copyrighted content, and because it derived financial benefit from the infringing content through advertising revenue.

The CJEU’s ruling in these cases clarified the liability of online platform operators for copyright infringement by their users. The court stated that platform operators can be held liable for copyright infringement if they have actual knowledge of the infringing content or if they are aware of facts or circumstances from which the infringing activity is apparent. The court also emphasised that platform operators have a responsibility to take measures to prevent or remove infringing content once they become aware of it and noted that the fact that the platform operator derives financial benefit from the infringing content is relevant in determining liability, but it is not necessarily determinative.

In these decisions, the responsibility of the two platforms has been evaluated based on the rules of sharing services before the entry into force in the European Union of the provisions of Article 17 of EU Directive/790/2019 (so-called DSM – Digital Single Market Directive).

In these decisions, the Court, while reaffirming the need for each case to be examined and evaluated individually, also listed a series of factors that affect the assessment of the responsibility of the sharing service provider, including:

• the manager’s knowledge of the use made by users of the platform;
• the lack of use by the same of technological measures capable of preventing violations;
• its possible participation in the selection of the material made available to the public;
• the provision of programs available on the platform that encourage the illegal exchange of content;
• the creation of a “business model” that encourages users to exchange protected content through the sharing service;
• the illegal use of the content made available to the public by the platform.

In fact, the CJEU case law confirmed the statements that had previously characterised the decision Stichting Brein / J.F. Wullems (C-527/15) decision on the 27th of April 2017, whereby the fact that the content is uploaded to the network by users does not mean that the platform administrators cannot be considered responsible for such illegal acts, as they facilitate the sharing of content through the indexing of “torrent files”. Therefore, they are playing a central role in acts of communication to the public of protected content.

The issue of protecting intellectual property rights is also addressed on a European Union level. Article 17(2) of the Charter of Fundamental Rights of the European Union states that “intellectual property shall be protected.”

Additionally, the European Commission has released several communications on this topic, including COM(2011) 287 final on the 24th of May 2011, which focuses on creating a single market for intellectual property rights to enhance creativity and innovation, and COM(2020) 760 final on the 25th of November 2020, which focuses on making the most of the EU’s innovative potential through an Intellectual Property Action Plan to support EU recovery and resilience.

More recently, the new Copyright Directive 2021 has been adopted, which strengthens the rights of authors and performers and improves the functioning of the copyright market in the EU.

Conclusion

In conclusion, it is clear that the issue of protecting copyrighted content in electronic communication networks is a complex and evolving topic. As such, BRANDIT as a company, is closely following  any new legislations to ensure the protection of our clients’ rights.

Author: Luisa Grillo, IP Counsel, BRANDIT