"Testing the Limits”: Brief Commentary As a Side Note to the Ruling of the CJEU in case YouTube/Cyando (C‑682/18 and C‑683/18) of 22 June 2021

June 23, 2021

By means of yesterday’s judgment, the CJEU is trying to mitigate the adverse trend in judicial decisions with respect to the right of communication of works to the public which has emerged after 2013 after the Svensson case.

Accidental entities

At that moment, the CJEU started the process of extensive interpretation of the law in question, expanding the liability for the infringement of copyright to slightly accidental entities that only facilitate access to works and do not transmit or re-transmit them independently in any manner such as to: companies which make available via the Internet a video recording system, in storage space within the cloud (in Case C‑265/16: VCAST), a file-sharing platform (in case C‑610/15: Stichting Brein/Ziggo), a multimedia player seller (in case: C‑527/15, Filmspeler) etc.

Reversal of the trend?

In practice, such approach increased the transactional risk and, in my opinion, weakened the innovation of enterprises in the area of the EU. Today, the court is trying to throw a lifeline to websites such as YouTube, yet in my opinion it only exacerbates the legal and transactional risks. Reversal of the trend on the part of the EU Court of Justice is incomplete and ostensible - in principle, it mainly reverses the for-profit making nature of activities with respect to which the Court - differently than before (cf. judgement in case C‑160/15 of GS Media) - does not ascribe decisive significance with respect to the potential infringement of the communication to the public right.

A basic question

The ruling is a further dilution of the communication to the public right.

Even though the court stated (66) that cumulative meeting of only two criteria is required with respect to the preventive right discussed here (62), namely making the work available and to the public, yet in a further part of the reasoning it sustained the necessity of also considering (67) "complementary criteria"​ which, as the court stated - do not have - “autonomous"​ nature, but are mutually "interdependent” without explaining in detail what it is about. A basic question emerges: if such further criteria are complementary, then why it is necessary to search for them to establish the direct liability and what would be the legal basis for it? Such complementary criteria include, according to the court, e.g. existence of the indispensable role of the user in the potential infringement, existence of his/ her full knowledge of the consequences of the infringement, etc. It is not certain where the court draws the genesis or the systemic location of the aforementioned criteria from, yet in my opinion they give rise to legal uncertainty as they remain blurred or excessively casuistic.

“Testing the limits” or a “downward spiral"​.

Without doubt, the CJEU is consistently incorporating the “mental element” on the side of the potential perpetrator of the infringement into the system of the copyright law, which is emphasised by certain representatives of the doctrine of the European copyright. Thus in fact, the court is paradoxically weakening the level of protection under the copyright law and as mentioned earlier also the innovation. Time will show whether this course of action is “testing the limits” or a “downward spiral.” 

Author: Janusz Piotr Kolczyński