YouTube and Cyando, Joined Cases C-682/18 and C-683/18 (22 June 2021) : Case Comment (HvJ EU 22 juni 2021, YouTube en Cyando)

English Abstract: On 22 June the European Court of Justice (CJEU or Court) handed down its ruling in joined cases C-682/18 (YouTube) and C-683/18 (Cyando) concerning the liability of online platforms for copyright-infringing uploads made by their users. The first case concerned takedown and staydown requests in relation to phonograms uploaded by users to the well-known video sharing platform operated by YouTube. The second concerned files uploaded by users and hosted on Uploaded, a file-hosting and -sharing platform operated by Cyando, which were made accessible to the public via links on third-party websites (link collections, blogs, forums) and some of which contained unauthorized copies of works.The case was multi-dimensional, the referring Bundesgerichtshof (German Federal Court of Justice) having submitted multiple questions for consideration. The CJEU judgment involved the interpretation of arts. 3(1) and 8(3) InfoSoc Directive (regarding, respectively, direct liability for communication to the public and injunctions against intermediaries), art. 14 e-Commerce Directive (regarding the hosting safe harbour) and arts. 11 and 13 Enforcement Directive (regarding damages). As the Court was careful to note, this judgment did not concern the interpretation of art. 17 CDSM Directive, even if this new provision will henceforth govern the liability of at least some of the providers covered in the judgment, such as YouTube.This annotation focuses on two key issues tackled in the ruling: the scope of liability of online platforms for communications to the public of the protected content they host; and the scope of injunctions against intermediaries used by third parties to infringe copyright