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Joined Cases C-682/18 and C-683/18 Peterson v. Google & Youtube And Elsevier v. Cyando (C.J.E.U.)

Published online by Cambridge University Press:  16 November 2021

Justin Hughes
Justin Hughes*
Affiliation:
Justin Hughes is the Honorable William Matthew Byrne, Jr. Professor of Law, Loyola Law School, Loyola Marymount University, United States and Visiting Professor, Faculty of Law, Oxford University, United Kingdom. In the Obama Administration, he was the chief U.S. negotiator for the Beijing Treaty on Audiovisual Performances (2012) and the Marrakesh Treaty for the Blind (2013).
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Extract

Since its inception, the internet has challenged many basic principles of international copyright law. While some key “digital copyright” issues have been addressed in multilateral treaties, one of the most vexing issues with the global digital network remains—the question of the responsibility of third-party intermediaries for copyright infringements by internet users.

Type
International Legal Documents
Information
International Legal Materials , Volume 61 , Issue 3 , June 2022 , pp. 453 - 482
Copyright
Copyright © The Author(s), 2021. Published by Cambridge University Press on behalf of The American Society of International Law

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References

ENDNOTES

1 World Intellectual Property Organization Copyright Treaty (WCT), adopted Dec. 20, 1996, S. Treaty Doc. No. 105–17 (1997), 2186 U.N.T.S. 152 (entered into force March 6, 2002); WIPO Performances and Phonograms Treaty (WPPT), adopted Dec. 20, 1996, S. Treaty Doc. No. 105-17 (1997), 2186 U.N.T.S. 203 (entered into force May 20, 2002); Beijing Treaty on Audiovisual Performances, adopted June 24, 2012, S. Treaty Doc. No. 114-8 (2016), 51 ILM 1214 (entered into force on April 28, 2020).

2 For a contemporaneous discussion of this phenomenon, see Justin Hughes, The Internet and the Persistence of Law, 44 Boston Col. L. Rev. 359 (2003).

3 17 U.S.C. § 512.

4 See Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on Certain Legal Aspects of Information Society Services, in Particular, Electronic Commerce, in the Internal Market, 2000 O.J. (L 178), arts 12–14, [hereinafter e-Commerce Directive].

5 Interpretation by the Supreme People's Court of Several Issues Relating to Adjudication of and Application of Law to Cases of Copyright Disputes on Computer Network, Adopted at the 1144th meeting of the Adjudication Commission of the Supreme People's Court, December 21, 2000, www.cpahkltd.com/Archives.

6 Innovation, Science, and Economic Development Canada, Copyright Policy (last modified Sept. 21, 2021), http://www.ic.gc.ca/eic/site/693.nsf/eng/h_00006.html.

7 Here and in the rest of this introduction, bracketed numbers, i.e., “[68]” are paragraph numbers in the CJEU opinion.

8 On the other hand, the CJEU also said that “deliberateness”—and, therefore, direct responsibility for communication to the public—could not be inferred from “the mere fact that the operator of a video-sharing platform or a file-hosting and sharing platform has the aim of making a profit” [86] and that the presumption of communication to the public from linking that the CJEU recognized in its 2016 GS Media decision did not extend to hosting activities [87].

9 The CJEU had already adopted this view in the context of remedial actions for defamation. In Glawischnig-Piesczek v. Facebook, C-18/18 (2019), the Court had said, at paragraph 25, “[i]t follows that, as the Advocate General stated in point 32 of his Opinion, a host provider may be the addressee of injunctions adopted on the basis of the national law of a Member State, even if it satisfies one of the alternate conditions set out in Article 14(1) of Directive 2000/31, that is to say, even in the event that it is not considered to be liable.”

10 Directive (EU) 2019/790 of the European Parliament and of the Council of 17 April 2019 on copyright and related rights in the Digital Single Market and amending Directives 96/9/EC and 2001/29/EC [hereinafter DSM Directive].

11 DSM Directive Article 17(4)(b).

12 DSM Directive Article 17(7). Recital 66 of the DSM Directive provides a good encapsulation of the balance sought.

13 Shortly after the Directive was adopted, the Polish government challenged certain parts of Article 17 through an action for annulment before the CJEU. See Case C-401/19, Republic of Poland v. European Parliament and Council of the European Union. For an analysis that assumes only very limited automated filtering would be acceptable under EU law, see Christophe Geiger and Bernd Justin Jütte, Towards a Virtuous Legal Framework for Content Moderation by Digital Platforms in the EU?, 43 Eur. Int. Prop. Rev. 625 (2021). For a more favorable perspective on the possibilities for Article 17, see Matthias Leistner, European Copyright Licensing and Infringement Liability Under Art. 17 DSM-Directive Compared to Secondary Liability of Content Platforms in the U.S. – Can We Make the New European System a Global Opportunity Instead of a Local Challenge?, 2020 Zeitschrift für Geistiges Eigentum/Intellectual Property Journal (ZGE/IPJ) 123 (2020).

14 This is consistent with the Glawischnig-Piesczek v. Facebook opinion in which the Court concluded that ordering a platform to monitor for and block access to information that was “equivalent to the content of information which was previously declared to be unlawful” did not run afoul of the E-Commerce Directive's prohibition on any general obligation on internet platforms to monitor the information they host or transmit. Id. ¶ 53.