The CJEU Pirate Bay Judgment and Its Impact on the Liability of Online Platforms

Abstract:     In its 2017 judgment in The Pirate Bay (C-610/15) the CJEU developed further its construction of the right of communication to the public within Article 3(1) of Directive 2001/29 (the InfoSoc Directive), and clarified under what conditions the operators of an unlicensed online platform are potentially liable for copyright infringement. The Court held that the operators of a platform that makes available to the public third-party uploaded copyright content and provides functions such as indexing, categorization, deletion and filtering of content may be liable for copyright infringement, jointly with users of the platform. For a finding of liability it is not required that the operators possess actual knowledge of the infringing character of the content uploaded by users.

The decision encompasses different types of platforms and operators with different degrees of knowledge of the character – lawful or unlawful – of the content made available therein. It calls into consideration the relationship between liability for (harmonized) primary copyright infringement and (unharmonized) secondary copyright infringement. In relation to the current EU policy discussion of the so called ‘value gap proposal’, the judgment reinforces the position of the European Commission, especially the basic idea that the making available, by a hosting provider, of third-party uploaded copyright content may fall within the scope of the right of communication to the public. The Court’s reasoning also prompts a reflection as to whether a hosting provider that is primarily responsible for acts of communication to the public is actually eligible for the safe harbour within Article 14 of Directive 2000/31 (the E-Commerce Directive).