Direct Copyright Liability As Regulation Of Hosting Platforms For The Copyright-Infringing Content Uploaded By Their Users: Quo Vadis ?

Abstract

The potential direct liability of hosting platforms such as YouTube and Dailymotion, which provide the technical conditions for their users to upload and share copyright-protected content, for the infringement of the right of communication to the public (CTTP) in Article 3(1) Directive 2001/29/EC (and pre-Directive 790/2019) represents one of the most complex and controversial aspects of current European Union (EU) copyright law. The test in Article 3(1) is opaque and may even support opposing conclusions on the matter. Doctrinally, the appropriateness of Article 3(1) to regulate hosting platforms is shaky as it is unclear how the regulation of platforms via Article 3(1) may reflect the balance of interests of rightsholders, of platforms, and internet users. Hosting platforms facilitate both the legal and illegal sharing of copyright content indiscriminately and in an automated fashion. When legal content is shared through their service, hosting platforms play an important role in facilitating the exercise of user’s freedom to send and receive information safeguarded by Article 11 of the EU Charter of Fundamental Rights. The potential application of direct copyright liability to hosting platforms, including the spectre of damages, may chill technical innovation in the area. Some platforms may even close and the opportunities for internet users to share legal content reduces as a result. To address these issues, this article analyses the three alternatives for limiting the responsibility of hosting platforms under Article 3(1). The article first analyses the complex test for CTTP under Article 3(1). To balance the application of liability, Alternative 1 explores the option of integrating a ‘duty of care’ element conditioned by a standard of proportionality within the test for CTTP. Alternative 2 challenges the notion that direct responsibility may be attributed to operators of hosting platforms. It analyses, but ultimately dismisses, the situation where host providers may be considered as mere providers of facilities for enabling communication. Alternative 3 advances a novel application of the test under Article 3(1) which shows that operators of certain hosting platforms do not engage in acts of “communication” of the illegal copyright material uploaded by their users. The purpose of the paper is to bring attention to particular possible constructions of hosting platform liability and their broader implications.