OPINION OF ADVOCATE GENERAL

SAUGMANDSGAARD ØE

delivered on 16 July 2020 ( 1 )

Joined Cases C‑682/18 and C‑683/18

Frank Peterson

v

Google LLC,

YouTube LLC,

YouTube Inc.,

Google Germany GmbH (C‑682/18)

and

Elsevier Inc.

v

Cyando AG (C‑683/18)

(Requests for a preliminary ruling

from the Bundesgerichtshof (Federal Court of Justice, Germany))

(Reference for a preliminary ruling — Intellectual property — Copyright and related rights — Directive 2001/29/EC — Article 3 — Communication to the public — Concept — Uploading of protected works on internet platforms by users of the platforms without the prior authorisation of the rightholders — No primary liability of the operators of those platforms — Secondary liability of those operators for copyright infringements committed by the users of their platforms — Matter coming outside the scope of Article 3 of Directive 2001/29 — Directive 2000/31/EC — Article 14 — Exemption from liability for providers of an ‘information society service … that consists of the storage of information provided by a recipient of the service’ — Concept — Possibility for those operators to be exempted from the liability that may result from the information that they store at the request of users of their platforms — Conditions to be met in order to benefit from that exemption from liability — Article 14(1)(a) — Expressions ‘actual knowledge of illegal activity or information’ and ‘aware of facts or circumstances from which the illegal activity or information is apparent’ — Specific illegal information — Article 8(3) of Directive 2001/29 — Injunctions against intermediaries whose services are used by a third party to infringe a copyright or related right — Conditions to be met in order to apply for such an injunction)

Table of contents

I. Introduction II. Legal framework A. Directive 2000/31 B. Directive 2001/29 III. The disputes in the main proceedings A. Case C‑682/18 1. YouTube 2. The action brought by Mr Peterson B. Case C‑683/18 1. Uploaded 2. The action brought by Elsevier IV. The questions referred for a preliminary ruling and the procedure before the Court V. Analysis A. The concept of ‘communication to the public’ within the meaning of Article 3(1) of Directive 2001/29 (first questions) 1. The fact that the operators of platforms such as YouTube or Cyando do not, in principle, carry out acts of ‘communication to the public’ 2. The fact that Article 3(1) of Directive 2001/29 does not govern the secondary liability of persons facilitating the carrying out, by third parties, of illegal acts of ‘communication to the public’ 3. In the alternative — whether operators such as YouTube and Cyando deliberately facilitate the carrying out by third parties of illegal acts B. The field of application of the exemption from liability under Article 14(1) of Directive 2000/31 (second questions) C. The condition for the exemption, concerning a lack of knowledge or awareness of illegal information, laid down in Article 14(1)(a) of Directive 2000/31 (third questions) D. The conditions to be met in order to apply for an injunction against an intermediary in accordance with Article 8(3) of Directive 2001/29 (fourth questions) E. In the alternative — the concept of ‘infringer’ within the meaning of Article 13 of Directive 2004/48 (fifth and sixth questions) F. The fact that the objective of a high level of copyright protection does not justify a different interpretation of Directives 2000/31 and 2001/29 VI. Conclusion

I. Introduction

1. The present requests for a preliminary ruling were made by the Bundesgerichtshof (Federal Court of Justice, Germany). They concern the interpretation of Directive 2000/31/EC on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (‘Directive on electronic commerce’), ( 2 ) Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society ( 3 ) and Directive 2004/48/EC on the enforcement of intellectual property rights. ( 4 )

2. The requests were made in two disputes. In the first, Mr Frank Peterson, a music producer, is suing YouTube LLC and its parent company Google LLC for the uploading to the YouTube sharing platform of several phonograms to which he claims to hold rights, by users of that platform without his authorisation. In the second, Elsevier Inc., a publishing group, is suing Cyando AG for the uploading to the Uploaded file-hosting and -sharing platform operated by the latter company of various works in which Elsevier holds the exclusive rights, by users of that platform without its authorisation.

3. The six questions asked by the referring court in each of its requests for a preliminary ruling revolve around the extremely sensitive issue of the liability of online platform operators with regard to copyright-protected works illegally uploaded onto their platforms by their users.

4. The nature and scope of that liability depends in particular on the interpretation of Article 3 of Directive 2001/29, which confers on authors the exclusive right to communicate their works to the public, and Article 14 of Directive 2000/31, which gives intermediary service providers an exemption from liability for the information which they store at the request of users of their services. In the present cases, the Court is thus called on to clarify in particular whether the former provision is applicable to such platform operators, whether they may rely on the latter provision and how those provisions are interrelated.

5. This issue is characterised by profound divisions. For some, online platforms allow large-scale copyright infringement, from which their operators profit to the detriment of the rightholders, which justifies imposing on them extensive obligations to monitor the content uploaded to those platforms by users of their platforms. For others, imposing on those operators such obligations to monitor would significantly affect their activity and the rights of those users and would undermine freedom of expression and creativity online.

6. These divisions were brought to a head during the discussions surrounding the adoption by the EU legislature of Directive (EU) 2019/790 on copyright and related rights in the Digital Single Market and amending Directives 96/9/EC and 2001/29. ( 5 ) Article 17 of that new directive establishes, with respect to operators such as YouTube, a specific liability regime for works illegally uploaded by users of their platforms. I should point out, however, that that directive, which entered into force in the course of the present preliminary ruling proceedings, is not applicable to the disputes in the main proceedings. These cases will therefore have to be determined through the lens of the legal framework prior to that, regardless of whatever approaches may just have been adopted by the EU legislature.

7. In this Opinion I will propose that the Court rule that platform operators such as YouTube and Cyando do not, in principle, carry out acts of ‘communication to the public’ within the meaning of Article 3 of Directive 2001/29 and are not therefore directly liable for an infringement of that provision when their users illegally upload protected works. I will also explain why those operators may, in principle, benefit from the exemption from liability laid down in Article 14 of Directive 2000/31, subject to conditions which I will outline. Lastly, I will explain that, pursuant to EU law, rightholders may obtain injunctions against those operators which can impose new obligations on the latter, the conditions for which I will clarify.

II. Legal framework

A. Directive 2000/31

8. Section 4 of Directive 2000/31, entitled ‘Liability of intermediary service providers’, includes Articles 12 to 15 of the directive.

9. Article 14 of the directive, entitled ‘Hosting’, provides: ‘1. Where an information society service is provided that consists of the storage of information provided by a recipient of the service, Member States shall ensure that the service provider is not liable for the information stored at the request of a recipient of the service, on condition that: (a) the provider does not have actual knowledge of illegal activity or information and, as regards claims for damages, is not aware of facts or circumstances from which the illegal activity or information is apparent; or (b) the provider, upon obtaining such knowledge or awareness, acts expeditiously to remove or to disable access to the information. 2. Paragraph 1 shall not apply when the recipient of the service is acting under the authority or the control of the provider. 3. This Article shall not affect the possibility for a court or administrative authority, in accordance with Member States’ legal systems, of requiring the service provider to terminate or prevent an infringement, nor does it affect the possibility for Member States of establishing procedures governing the removal or disabling of access to information.’

10. Article 15 of that directive, entitled ‘No general obligation to monitor’, provides, in paragraph 1: ‘Member States shall not impose a general obligation on providers, when providing the services covered by Articles 12, 13 and 14, to monitor the information which they transmit or store, nor a general obligation actively to seek facts or circumstances indicating illegal activity.’

B. Directive 2001/29

11. Recital 27 of Directive 2001/29 states that ‘the mere provision of physical facilities for enabling or making a communication does not in itself amount to communication within the meaning of this Directive’.

12. Article 3 of that directive, entitled ‘Right of communication to the public of works and right of making available to the public other subject matter’, provides: ‘1. Member States shall provide authors with the exclusive right to authorise or prohibit any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access them from a place and at a time individually chosen by them. 2. Member States shall provide for the exclusive right to authorise or prohibit the making available to the public, by wire or wireless means, in such a way that members of the public may access them from a place and at a time individually chosen by them: (a) for performers, of fixations of their performances; (b) for phonogram producers, of their phonograms; … 3. The rights referred to in paragraphs 1 and 2 shall not be exhausted by any act of communication to the public or making available to the public as set out in this Article.’

13. Article 8 of the directive, entitled ‘Sanctions and remedies’, provides, in paragraph 3, that ‘Member States shall ensure that rightholders are in a position to apply for an injunction against intermediaries whose services are used by a third party to infringe a copyright or related right’.

III. The disputes in the main proceedings

A. Case C‑682/18

1. YouTube

14. YouTube is an internet platform operated by the company of that name, the sole shareholder and legal representative of which is Google. The platform, which takes the form of various websites and applications for smart devices, enables its users to share videos on the internet.

15. In order to upload a video to YouTube, it is necessary to create an account, with a username and password, and to accept the platform’s terms of service. Any user who uploads a video after registering in this way can choose to make it ‘private’ or to publish it on the platform. In the latter case, the video in question can be streamed from the platform, shared by any user and commented on by other registered users. Registered users can also create ‘channels’ to collect together their videos.

16. Videos are uploaded on said platform automatically, without material being seen in advance or checked by Google or YouTube. Almost 35 hours of video content are published in this way on the platform every minute, ( 6 ) representing several hundred thousand videos each day.

17. YouTube includes a search function and processes the results of the search by, inter alia, evaluating the videos’ relevance specifically according to the user’s region. The results of that evaluation are summarised on the home page in categories such as ‘currently watched videos’, ‘promoted videos’ and ‘trending’. YouTube indexes the available videos and channels under categories such as ‘entertainment’, ‘music’ and ‘film and animation’. In addition, when registered users use the platform, they are given an overview of ‘recommended videos’, which depend, inter alia, on the videos watched previously by them.

18. YouTube receives from its platform, inter alia, advertising revenue. Advertising banners of third-party advertisers appear at the sides of the platform’s home page. In addition, advertisements are inserted into certain videos, which requires a specific contract to be concluded between the users concerned and YouTube.

19. Under YouTube’s terms of service, each user grants YouTube, in respect of the videos that he or she uploads to the platform and until they are withdrawn from the platform, a worldwide, non-exclusive, royalty-free licence to use, reproduce, distribute and create derivative works and to display and perform those videos in connection with the provision of YouTube’s platform and activities, including advertising.

20. In accepting those general terms, users confirm that they hold all the necessary rights, agreements, consents and licences for the videos that they upload. In addition, in the ‘Community guidelines’, YouTube asks users of its platform to respect copyright. They are also informed on making each upload that no videos infringing copyright may be published on the platform.

21. YouTube has introduced various technical measures to stop and prevent infringements on its platform. Anyone can notify YouTube of an illegal video in writing or by fax, email or webform. A notification button has been created, with which indecent or infringing content can be reported. By means of a special alert procedure, copyright holders are also able to have up to 10 specifically disputed videos removed from the platform by indicating the relevant internet addresses (URLs).

22. YouTube has also set up the Content Verification Program. That programme is available only to undertakings that are specially registered and not to private individuals. The programme offers the rightholders concerned various tools allowing them to check more easily how their works are being used on the platform. They can, in particular, check off directly in a list of videos those which they consider to infringe their rights. If a video is blocked because of such a report, the user who uploaded it is notified that his or her account will be blocked in the event that the infringement takes place again. YouTube also makes available to rightholders participating in that programme a piece of content-recognition software, called ‘Content ID’, which was developed by Google, the purpose of which is automatically to detect videos using their works. In that regard, according to the explanations given by Google, the rightholders should provide YouTube with audio or video reference files to identify the works in question. Content ID creates ‘digital fingerprints’ from those files, which are stored in a database. Content ID automatically scans each video uploaded to YouTube by a user and compares it to those ‘fingerprints’. The software can thus recognise video and audio, including melodies where they have been reproduced or copied. Where a match is identified, the rightholders concerned are automatically notified. They have the option to block the detected videos in question. Alternatively, they can choose to track the use of those videos on YouTube through viewership statistics. They can also opt to monetise those videos by inserting advertisements or receiving a portion of the income generated by the advertisements inserted previously at the request of the users who uploaded the videos.

2. The action brought by Mr Peterson

23. On 6 and 7 November 2008, music tracks from the album A Winter Symphony by the artist Sarah Brightman and private sound recordings from the ‘Symphony Tour’ concerts, linked to still and moving images, were published on YouTube by users of that platform.

24. By letter of 7 November 2008, Mr Peterson, who claims copyright and related rights to the music tracks and recordings in question, ( 7 ) contacted Google Germany GmbH and, in essence, instructed that company and Google to remove the videos at issue on pain of sanction. To that end, Mr Peterson provided screenshots taken from those videos. Accordingly, using those screenshots, YouTube manually determined the internet addresses (URLs) of the videos and disabled access to them. The parties in the main proceedings nevertheless disagree on the extent of those blocking measures.

25. On 19 November 2008, sound recordings from Sarah Brightman’s performances, linked to still and moving images, were once again accessible on YouTube.

26. Subsequently, Mr Peterson brought an action against, inter alia, ( 8 ) Google and YouTube before the Landgericht Hamburg (Regional Court, Hamburg, Germany). Mr Peterson sought, in essence, to obtain an injunction prohibiting those companies from making available to the public 12 sound recordings or performances taken from the A Winter Symphony album and 12 works or performances taken from concerts on the ‘Symphony Tour’ or, in the alternative, from permitting third parties to do so. Mr Peterson also asked to be provided with information on the infringing activities in question and on the turnover or profits generated by YouTube through those activities. In addition, he requested that the court give a declaration that, inter alia, YouTube is required to pay him damages for making the videos at issue available to the public. Lastly, Mr Peterson requested, in the alternative, that information be provided on the users who uploaded those videos.

27. By a judgment of 3 September 2010, the Landgericht Hamburg (Regional Court, Hamburg) granted the action in respect of three music tracks and dismissed the action as to the remainder. Mr Peterson, YouTube and Google appealed against that decision.

28. By a judgment of 1 July 2015, the Oberlandesgericht Hamburg (Higher Regional Court, Hamburg, Germany) reversed in part the judgment given at first instance. The Oberlandesgericht (Higher Regional Court) prohibited YouTube and Google, subject to a periodic penalty payment, from allowing third parties to make available to the public sound recordings or performances of seven tracks from the album A Winter Symphony. That court also ordered those companies to provide Mr Peterson with various pieces of information on the users who had uploaded the videos in question. The court dismissed the action brought by Mr Peterson as to the remainder.

29. Mr Peterson brought an appeal on a point of law at the Bundesgerichtshof (Federal Court of Justice). In these circumstances, by a decision of 13 September 2018, which was received by the Court on 6 November 2018, the Bundesgerichtshof (Federal Court of Justice) stayed the proceedings and made a reference to the Court.

B. Case C‑683/18

1. Uploaded

30. Uploaded is a file-hosting and -sharing platform (commonly referred to as a file hosting service or a cyberlocker) operated by Cyando. The platform, which can be accessed via different websites, offers anyone, free of charge, storage space for uploading files that can contain any content. In order to use Uploaded, it is necessary to create an account with a username and a password by providing, inter alia, an email address. The uploading of files happens automatically without material being seen in advance or checked by Cyando. For each file stored by a user a download link is automatically created and sent to that user. Uploaded offers neither a directory nor a search function for the hosted files. However, users are free to share those download links on the internet, for example in blogs, forums, or even in ‘link collections’, which are sites that index those links, provide information on the files associated with those links and allow internet users to search for the files that they want to download.

31. Provided that one has an account and the appropriate links, files hosted on Uploaded can be downloaded free of charge. However, for users with free, standard access to the platform, download options are limited (in terms of maximum data download volume, download speed, number of simultaneous downloads, etc.). As an alternative, users can take out a paid subscription in order to benefit from a much higher daily download volume with no limit on speed or on the number of simultaneous downloads and no waiting time between downloads. In addition, Cyando has set up a ‘partnership’ programme where it pays remuneration to some users who upload files to Uploaded based on the number of downloads of the files in question.

32. The terms of service for Uploaded stipulate that that platform may not be used to infringe copyright. Nevertheless, it is established that the platform is in actual fact used for both legal applications and, ‘to a large degree’, ( 9 ) applications that infringe copyright, of which Cyando is aware. In this regard, Cyando had been notified of the presence on its servers of more than 9500 protected works, uploaded without the prior authorisation of the rightholders, download links to which had been shared on approximately 800 websites (link collections, blogs and forums), of which it is aware.

2. The action brought by Elsevier

33. According to the order for reference in Case C‑683/18, a number of protected works to which Elsevier holds the exclusive rights of use were hosted on the Uploaded platform and made available to the public, without the authorisation of that company, in link collections, blogs and other forums. In particular, on the basis of research conducted from 11 to 13 December 2013, Elsevier notified Cyando, by two letters sent on 10 and 17 January 2014, that files containing three of those works, namely Gray’s Anatomy for Students, Atlas of Human Anatomy and Campbell-Walsh Urology, were stored on its servers and could be freely consulted via the link collections rehabgate.com, avaxhome.ws and bookarchive.ws.

34. Elsevier brought an action, notified on 17 July 2014, against Cyando before the Landgericht München (Regional Court, Munich, Germany). By its action, Elsevier claimed, inter alia, that a prohibitory injunction should be imposed on Cyando, as the party which infringed the copyright of the works at issue, in the alternative as an accomplice to that infringement and, in the further alternative, as ‘Störer’ (‘interferer’). Elsevier also requested that Cyando be ordered to disclose certain information to it. In addition, the first company asked the court give a declaration that the second company is obliged to pay damages to it in respect of those infringements.

35. By a judgment of 18 March 2016, the Landgericht München (Regional Court, Munich) imposed a prohibitory injunction on Cyando on account of its participation in copyright infringement in respect of the three works referred to in the letters of 10 and 17 January 2014 and granted the claims made in the alternative by Elsevier. The court dismissed the action as to the remainder.

36. Elsevier and Cyando each appealed against that decision. By a judgment of 2 March 2017, the Oberlandesgericht München (Higher Regional Court, Munich, Germany) reversed the judgment given at first instance. That court imposed a prohibitory injunction on Cyando in respect of the three works cited in the letters of 10 and 17 January 2014 as ‘Störer’ in accordance with the claim made in the further alternative by Elsevier. The appeal court dismissed the action as to the remainder.

37. Elsevier brought an appeal on a point of law before the Bundesgerichtshof (Federal Court of Justice). In these circumstances, by a decision of 20 September 2018, which was received by the Court on 6 November 2018, that court stayed the proceedings and made a reference to the Court.

IV. The questions referred for a preliminary ruling and the procedure before the Court

38. In Case C‑682/18, the Bundesgerichtshof (Federal Court of Justice) referred the following questions to the Court for a preliminary ruling: ‘(1) Does the operator of an internet video platform on which videos containing content protected by copyright are made publicly accessible by users without the consent of the rightholders carry out an act of communication within the meaning of Article 3(1) of [Directive 2001/29] if – the operator earns advertising revenue by means of the platform, – the upload process takes place automatically and without material being seen in advance or controlled by the operator, – in accordance with the conditions of use, the operator receives a worldwide, non-exclusive and royalty-free licence for the videos for the duration for which the videos are posted, – in the conditions of use and during the upload process, the operator points out that copyright-infringing content may not be posted, – the operator provides tools with which rightholders can take steps to block infringing videos, – on the platform, the operator prepares search results in the form of rankings and content categories, and displays to registered users an overview that is oriented towards previously seen videos and that contains recommended videos which can be displayed to registered users, if the operator is not specifically aware of the availability of copyright-infringing content or, after having become aware, expeditiously deletes that content or expeditiously disables access thereto? (2) If Question 1 is answered in the negative: Does the activity of the operator of an internet video platform under the conditions described in Question 1 come within the scope of Article 14(1) of [Directive 2000/31]? (3) If Question 2 is answered in the affirmative: Must the actual knowledge of the illegal activity or information and the awareness of the facts or circumstances from which the illegal activity or information is apparent relate to specific illegal activities or information pursuant to Article 14(1) of [Directive 2000/31]? (4) Also if Question 2 is answered in the affirmative: Is it compatible with Article 8(3) of [Directive 2001/29] if the rightholder is in a position to obtain an injunction against a service provider whose service consists of the storage of information provided by a recipient of the service, and whose service has been used by a recipient of the service to infringe a copyright or related right, only if such an infringement has taken place again after notification of a clear infringement has been provided? (5) If Questions 1 and 2 are answered in the negative: Is the operator of an internet video platform under the conditions described in Question 1 to be regarded as an infringer within the meaning of the first sentence of Article 11 and Article 13 of [Directive 2004/48]? (6) If Question 5 is answered in the affirmative: Can the obligation of such an infringer to pay damages pursuant to Article 13(1) of [Directive 2004/48] be made subject to the condition that the infringer acted intentionally with regard both to his own infringing activity and to the infringing activity of the third party, and knew, or ought reasonably to have known, that users use the platform for specific acts of infringement?’

39. In Case C‑683/18, the Bundesgerichtshof (Federal Court of Justice) also referred six questions to the Court for a preliminary ruling, the second to sixth questions being identical, in essence, to those referred in Case C‑682/18. Only the first question, which is reproduced below, is different: ‘(1) (a) Does the operator of a [file-hosting and -sharing] service via which files containing content protected by copyright are made publicly accessible by users without the consent of the rightholders carry out an act of communication within the meaning of Article 3(1) of [Directive 2001/29] if – the upload process takes place automatically and without being seen in advance or controlled by the operator, – in the conditions of use, the operator indicates that copyright-infringing content may not be posted, – it earns revenue through the operation of the service, – the service is used for lawful applications, but the operator is aware that a considerable amount of copyright-infringing content (over 9500 works) is also available, – the operator does not offer a directory of the content or a search function, but the unlimited download links provided by it are posted by third parties on the internet in link collections that contain information regarding the content of the files and make it possible to search for specific content, – via the structure of the remuneration for downloads that are paid by it in accordance with demand, it creates an incentive to upload content protected by copyright that users could otherwise only obtain for a charge and – by providing the possibility to upload files anonymously, the probability of users not being held accountable for copyright infringements is increased? (b) Does this assessment change if copyright-infringing offerings are provided by the shared hosting service and account for 90% to 96% of the overall use?’

40. By decision of the President of the Court of 18 December 2018, Cases C‑682/18 and C‑683/18 were joined, in the light of the connection between them, for the purposes of the written and oral procedures and the judgment.

41. Mr Peterson, Elsevier, Google, Cyando, the German, French and Finnish Governments and the European Commission submitted written observations before the Court. Those parties and interested parties, with the exception of the Finnish Government, were represented at the hearing which was held on 26 November 2019.

V. Analysis

42. The present cases are set against the backdrop of ‘Web 2.0’ services. From the mid-2000s various changes, both technological (ranging from the increase in global bandwidth to the democratisation of broadband connections) and social (possibly resulting from a change in the attitudes of internet users towards privacy or from their willingness to share, to contribute and to create online communities) led to the development on the internet of dynamic and interactive services, such as blogs, social networks and sharing platforms, all constituting tools allowing their users to share online all kinds of content, referred to as user-created content or user-generated content. The providers of those services claim that they allow users to shift from being passive consumers of entertainment, opinions and information to being actively involved in the creation and exchange of that content on the internet. The network effect inherent in the success of such services has quickly enabled a small number of those service providers to grow from start-ups to dominant undertakings. ( 10 )

43. The YouTube platform, which is at issue in Case C‑682/18, is representative in this respect. The platform gives its users (who number more than 1.9 billion, if Google is to be believed) the opportunity to share their content and, in particular, their creations online. A multitude of videos is uploaded there every day, including cultural and entertainment content, such as musical compositions published by emerging artists looking for a wide audience, informative content on topics as diverse as politics, sport and religion, as well as ‘tutorials’ the purpose of which is to allow anyone to learn to cook, play the guitar, repair a bicycle, etc. Content is published on YouTube not only by private individuals, but also by public bodies and professionals, including established media companies such as television channels and record companies. YouTube is organised according to a complex business model, which includes, inter alia, selling advertising space on its platform. ( 11 ) In addition, YouTube has set up a system through which it shares a percentage of its advertising revenue with some content-providing users, which allows the latter to earn revenue from the platform. ( 12 )

44. The Uploaded platform, which is at issue in Case C‑683/18, reflects a related, but nevertheless different reality. Generally, a cyberlocker provides its users with online storage space allowing them, inter alia, to save all kinds of files ‘in the cloud’ to be accessed at any time, from anywhere they wish and through any device. As a file hosting service, Uploaded, also includes a function for sharing the files that it hosts. Users thus have the ability to send download links generated for each of the files uploaded to third parties. According to Cyando, this function is intended to enable anyone easily to transfer very large files to family members, friends or business associates. In addition, through that function users can share on the internet rights-free content or their own works. Cyberlockers adopt various business models. Uploaded generates revenue by selling subscriptions, which affect, among other things, file download capacity.

45. While platforms such as YouTube and Uploaded can be used legally, they are also used in an illegal way. Videos shared on YouTube may notably contain protected works and infringe copyright. Further, by virtue of its very capacity to store and share particularly large files, a file hosting service such as Uploaded is a practical tool for illegally exchanging copies of works, including films and music.

46. Rightholders, such as Mr Peterson and Elsevier, which are supported in this instance by the French Government, thus paint a harsh picture of the platforms in question and their operators. By permitting the decentralised and unmonitored provision of content by any internet user on those platforms, those operators create a considerable risk of copyright infringement. That risk is exacerbated given the ubiquitous nature of the content published on those platforms, which can be viewed instantaneously by an indefinite number of users anywhere in the world. ( 13 ) The rightholders further invoke the difficulties which they encounter in suing the users responsible for those infringements carried out via those platforms, on account of their insolvency, anonymity or location.

47. The arguments put forward by the rightholders are not confined to the risk of infringement created by the activities of operators such as YouTube or Cyando. They complain more generally that such operators — YouTube in particular — have radically altered the value chain in the cultural economy at their expense. In essence, rightholders claim that those operators encourage the users of their platforms to upload attractive content which, in most cases, is protected by copyright. Those same operators monetise that content for their own account through, inter alia, advertising (the ‘YouTube’ model) or subscriptions (the ‘Cyando’ model) and profit from it significantly without, however, acquiring licences from the rightholders or paying them any remuneration. Those operators thus monopolise the vast majority of the value generated by the content to the detriment of the rightholders. This is the ‘value gap’ argument discussed in the context of the adoption of Directive 2019/790. In addition, platforms such as YouTube make it difficult for rightholders to engage in the normal exploitation of their works. In particular, the platforms compete unfairly with traditional media (radio and television channels, etc.) and digital content providers (Spotify, Netflix, etc.), which acquire the content that they disseminate from rightholders for remuneration and which, because of that unfair competition, are prepared to pay to the latter less remuneration in order to remain competitive. ( 14 ) Thus, in order to obtain the high level of protection of their intellectual property, which EU law seeks to ensure for them, and an appropriate remuneration for the use of their works, ( 15 ) rightholders should be able to turn to the platform operators themselves.

48. At this stage it is appropriate to note that Article 3(1) of Directive 2001/29 provides that authors have the exclusive right to authorise or prohibit any ‘communication to the public’ of their works, including the making available to the public of those works in such a way that members of the public may access them from a place and at a time individually chosen by them. ( 16 ) That exclusive right is infringed where a protected work is communicated to the public by a third party without the prior authorisation of its author, ( 17 ) unless that communication is subject to one of the exceptions and limitations laid down exhaustively in Article 5 of that directive. ( 18 )

49. The rightholders consider that operators such as YouTube and Cyando carry out, together with the users of their platforms, the ‘communication to the public’ of the works uploaded by the latter. Consequently, for all files which those users intend to share, the operators should check, before they are uploaded, whether the files contain protected works, determine the existing rights to those works and themselves obtain, generally for remuneration, a licence from the rightholders or, failing that, prevent the file from being uploaded. Each time that the operators fail to comply with those obligations and, as a result, works are published illegally on their platforms, they are directly liable for that lack of compliance and that publication, under Article 3(1) of Directive 2001/29. On that basis, those same operators are required, under Article 13 of Directive 2004/48, inter alia to pay damages to the rightholders concerned.

50. YouTube and Cyando, supported in this instance by the Finnish Government and the Commission, respond that they are merely intermediaries which provide tools enabling users of their platforms to communicate works to the public. It is therefore not the operators, but the users that carry out the ‘communication to the public’ within the meaning of Article 3(1) of Directive 2001/29 when they share online, on those platforms, files containing protected works. Those users therefore bear any direct liability in the event of illegal ‘communication’. In any event, those operators maintain that they are covered by Article 14(1) of Directive 2000/31. That provision exempts them from any liability which could arise from illegal files which they store at the request of users of their platforms, provided, in essence, that they were not aware of said files or that, where they became aware of the files in question, they removed them expeditiously. In addition, under Article 15(1) of that directive, those same operators may not be subject to a general obligation to monitor the files which they store or actively to seek facts or circumstances indicating illegal activity. YouTube and Cyando therefore maintain that under those provisions they are obliged not to monitor all files provided by users of their platforms before they are uploaded but, in essence, to be sufficiently reactive to notifications from rightholders pointing out that some of those files are illegal.

51. Against this background, the first questions asked by the Bundesgerichtshof (Federal Court of Justice) seek to determine whether the activity of platform operators such as YouTube and Cyando comes under the concept of ‘communication to the public’ within the meaning of Article 3(1) of Directive 2001/29. The second questions asked by that court seek to determine whether those operators may benefit from the exemption from liability under Article 14(1) of Directive 2000/31 for the files that they store at the request of their users. These questions are closely linked. The EU legislature intended, by Directives 2000/31 and 2001/29, to establish a clear framework of rules relevant to the issue of liability of intermediary service providers for copyright infringements at EU level. ( 19 ) Article 3(1) of the former directive and Article 14(1) of the latter must therefore be interpreted consistently. ( 20 )

52. I will examine each of those provisions in turn in Sections A and B of this Opinion. ( 21 )

A. The concept of ‘communication to the public’ within the meaning of Article 3(1) of Directive 2001/29 (first questions)

53. By its first questions, the referring court asks, in essence, whether the operator of a video-sharing platform and the operator of a file-hosting and ‑sharing platform carry out an act of ‘communication to the public’ within the meaning of Article 3(1) of Directive 2001/29 when a user of their platforms uploads a protected work there.

54. According to the Court’s settled case-law, the concept of ‘communication to the public’ provided for in Article 3(1) of Directive 2001/29 is an autonomous concept of EU law, whose meaning and scope must be determined in light of the wording of that provision, the context in which it is set and the objectives pursued by that directive. ( 22 ) In addition, that expression must be interpreted, as far as possible, in the light of the equivalent concepts contained in the texts of international law which are binding on the Union. ( 23 )

55. According to that case-law, the concept of ‘communication to the public’ involves two cumulative criteria, namely an act of ‘communication’ of a work and a ‘public’. ( 24 )

56. In this regard, first, as is made clear in recital 23 of Directive 2001/29, the concept of ‘communication to the public’ covers all transmission (or retransmission) of a work to a public not present at the place where the communication originates, irrespective of the technical process used. ( 25 ) In other words, a person carries out an act of ‘communication’ if he or she transmits a work and thus makes it perceptible ( 26 ) at a distance. ( 27 ) The typical example of such transmission, as that recital states, is the broadcasting of a work, while the term ‘retransmission’ includes, in particular, the simultaneous retransmission, by cable, satellite or internet, of a broadcast programme.

57. Furthermore, as I stated in point 48 of this Opinion, the concept of ‘communication’ includes that of ‘making available’. As is made clear by recital 25 and Article 3(1) of Directive 2001/29, this latter category covers interactive on-demand transmissions, which are characterised by the fact that members of the public may access the work from a place and at a time individually chosen by them. The concept of ‘making available’ thus covers the situation where a person makes it possible for a certain work to be transmitted to a ‘public’ in those circumstances, typically by uploading it to a website. ( 28 )

58. Second, the term ‘public’ refers to an ‘indeterminate’ and ‘fairly large’ number of persons. That term therefore covers persons in general, that is, not restricted to specific individuals belonging to a private group, and involves a certain de minimis threshold. ( 29 )

59. In this case, in the light of the foregoing, it is indisputable that when a protected work is shared online on a platform such as YouTube or Uploaded, that work is ‘made available to the public’ for the purposes of Article 3(1) of Directive 2001/29.

60. Where a video containing a protected work is published on YouTube, anyone can stream it on that platform, from a place and at a time individually chosen by them. The same holds where a file containing a work is hosted on Uploaded and the download link for that file is freely shared on the internet, in link collections, blogs or forums. ( 30 ) In both cases, the work is made available to a ‘public’ ( 31 ) even though it is viewed or downloaded at the request of individuals in a context of ‘one-to-one transmission’. In that regard, account should be taken of the number of persons able to access it at the same time and in succession. ( 32 ) In the abovementioned scenario, the work can be viewed or downloaded, as the case may be, by all actual and potential visitors to YouTube or to the website on which the link is shared, which is clearly an ‘indeterminate’ and ‘fairly large’ number of persons. ( 33 )

61. Consequently, if a protected work is published online from a platform such as YouTube or Uploaded by a third party without the prior authorisation of its author and that publication is not covered by the exceptions and limitations laid down in Article 5 of Directive 2001/29, there is an infringement of the exclusive right of ‘communication to the public’ conferred on the author by Article 3(1) of that directive.

62. That being so, the question is who — the user uploading the work concerned, the platform operator or both of them together — carries out that ‘communication’ and bears any potential liability for it.

63. At this stage, it should be stated that on this point Mr Peterson and Elsevier put forward an argument based on a different logic. In their view, operators such as YouTube and Cyando are liable under Article 3(1) of Directive 2001/29 because, first, they are actively involved in the ‘communication to the public’ of the works uploaded by users of their platforms, such that they carry out that ‘communication’ themselves, second, they have knowledge of the fact that those users share protected works illegally and, moreover, they deliberately incite them to do so and, lastly, they are negligent by failing to comply with certain duties of care imposed on them as a counterpart to the risk of infringement created by their activity. ( 34 )

64. I think that this argument confuses two issues. On the one hand, if operators such as YouTube and Cyando carried out the ‘communication to the public’ of works uploaded by users of their platforms, those operators would potentially bear direct (or ‘primary’) liability under Article 3(1) of Directive 2001/29. It is an objective question whether that is the case, to the exclusion of considerations such as knowledge or negligence. In principle, the response to that question depends solely on whether those operators carry out acts of ‘communication’ and whether those acts are carried out without the authorisation of the authors of the works concerned. In Section 1, I will explain, employing this analytical framework and examining only the relevant arguments, why, in principle, only users who upload protected works carry out the ‘communication to the public’ of those works. Any primary liability arising from that ‘communication’ is therefore borne, as a rule, only by those users.

65. On the other hand, the question whether operators such as YouTube and Cyando are liable for copyright infringements committed by users of their platforms because, for example, those operators had knowledge and deliberately refrained from acting, they incited those users to commit such infringements or they were negligent does not, in my view, come within the scope of Article 3(1) of Directive 2001/29. As I will explain in Section 2, although the Court seems to have interpreted this provision, in GS Media, ( 35 )Stichting Brein I (‘Filmspeler’) ( 36 ) and Stichting Brein II (‘The Pirate Bay’), ( 37 ) to the effect that it may cover liability on the part of third parties (known as ‘incidental’, ‘subsidiary’, ‘secondary’ or ‘indirect’ liability), as I understand it, that liability is not actually harmonised in EU law. It is therefore covered by the rules on civil liability laid down in the law of the Member States. In the alternative, in Section 3 I will examine the activity of those operators in the light of the analytical framework resulting from those judgments and the related arguments.

1. The fact that the operators of platforms such as YouTube or Cyando do not, in principle, carry out acts of ‘communication to the public’

66. As I explained in points 55 to 58 of this Opinion, an act of ‘communication to the public’ within the meaning of Article 3(1) of Directive 2001/29 corresponds to the transmission of a protected work to a public. In this context, an act of ‘making available’ consists in offering members of the public the possibility of such transmission, which can be carried out at their request from a place and at a time individually chosen by them.

67. That being said, as a rule, any transmission of a work to a public requires a chain of interventions carried out by several persons who are involved in different ways and to various extents in that transmission. For example, the possibility for television viewers to watch a work broadcast on their television sets is the result of combined efforts, including those of a broadcasting organisation, one or more distributers, the operator of the terrestrial network and the suppliers of the viewers’ aerials and television sets.

68. These interventions cannot all be considered acts of ‘communication to the public’ within the meaning of Article 3(1) of Directive 2001/29. Otherwise any link in the chain would be liable vis-à-vis the authors, whatever the nature of its activity. In order to avoid the risk of such a broad interpretation, the EU legislature specified, in recital 27 of that directive, that the ‘mere provision of physical facilities for enabling or making a communication does not in itself amount to communication within the meaning of [that directive]’. ( 38 )

69. A distinction should therefore be drawn, within the chain of interventions inherent in any transmission of a work to a public, between the person ( 39 ) carrying out the act of ‘communication to the public’ within the meaning of Article 3(1) of Directive 2001/29 and providers who, by providing ‘physical facilities’ for such transmission, act as intermediaries between that person and the public. ( 40 )

70. In the present instance, I am of the opinion that, as is argued by Google, Cyando, the Finnish Government and the Commission, the role played by operators such as YouTube and Cyando in the ‘communication to the public’ of works uploaded by users of their platforms is, in principle, the role of an intermediary. The objection of Mr Peterson, Elsevier and the German and French Governments, according to which those operators go beyond that role reflects, in my view, a misunderstanding of the distinction between such ‘mere provision of physical facilities’ and an act of ‘communication’.

71. I note that the principles governing this distinction were laid down in the Court’s very first decision on Article 3(1) of Directive 2001/29 in SGAE. ( 41 ) In that judgment, the Court ruled that the reception by a hotel of a broadcast and its distribution by means of television sets to customers staying in its rooms constitutes an act of ‘communication to the public’ of the works contained in that programme. While the installation of the television sets in rooms in itself constituted a ‘provision of physical facilities’, the action by the hotel was not limited to such provision. By distributing the broadcast to those television sets, the hotel intentionally ( 42 ) transmitted the works contained therein to its customers — who constituted not only a ‘public’, but a ‘new public’, that is, persons who had not been considered by the authors of those works when they authorised their broadcast ( 43 ) — who, although physically within the broadcast’s catchment area, would not, in principle, be able to enjoy those works without its intervention. ( 44 )

72. According to that judgment, where a work is transmitted to a public, the person who carries out the act of ‘communication’ — by contrast with the providers who ‘provide the physical facilities’ — is the person who intervenes intentionally to transmit that work to a public such that, in the absence of its intervention, that public would be unable to enjoy it. By acting in this way, that person plays — to use the expression established by the Court in its subsequent case-law — an ‘essential role’ ( 45 ) in that transmission.

73. This explanation could be misunderstood. In absolute terms, any intermediary plays an important, or even crucial, role in that transmission, as it is one of the links in the chain making it possible. However, the role played by the person in question is more fundamental. The role is ‘essential’ because it is that person who decides to transmit a given work to a public and who actively initiates that ‘communication’.

74. Conversely, intermediary providers whose services are used to allow or carry out a ‘communication’ do not decide, on their own initiative, to transmit works to a public. They follow the instructions given by users of their services in this regard. The latter decide to transmit the specific content and actively initiate their ‘communication’ by providing that content to the intermediaries and by thus introducing it into a process involving the transmission of that content to a ‘public’. ( 46 ) It is therefore those users alone, in principle, who play the ‘essential role’ envisaged by the Court and carry out the acts of ‘communication to the public’. Without their intervention, the intermediaries would have nothing to transmit and the ‘public’ would not be able to enjoy the works in question. ( 47 )

75. On the other hand, a service provider goes beyond the role of an intermediary where it intervenes actively in the ‘communication to the public’ of works. ( 48 ) That is the case if the provider selects the content transmitted, determines it in some other way or presents it to the public in such a way that it appears to be its own. ( 49 ) In those circumstances, the provider carries out the ‘communication’, together with the third party that initially provided the content. ( 50 ) This is also the case if that same provider, on its own initiative, makes further use of that ‘communication’ by retransmitting it to a ‘new public’ or via a ‘different technical means’. ( 51 ) In all these circumstances, a service provider does not merely ‘provide physical facilities’ within the meaning of recital 27 of Directive 2001/29. In fact, it plays an ‘essential role’ ( 52 ) as it makes an intentional decision to communicate a given work to a public. ( 53 )

76. It follows from the above considerations that, contrary to the assertion put forward by Mr Peterson and the German Government, the mere fact that platforms such as YouTube or Uploaded allow the public to access protected works does not mean that their operators carry out the ‘communication to the public’ of those works within the meaning of Article 3(1) of Directive 2001/29. ( 54 )

77. First of all, as is asserted by Google and the Finnish Government, in so far as the works in question were uploaded by users of those platforms, ( 55 ) the users play an ‘essential role’ in making them available to the public. The users have decided to communicate the works to the public through those platforms by selecting the appropriate option in the case of YouTube and by sharing the relevant download links on the internet in the case of Uploaded. ( 56 ) Without their intervention, the operators of those platforms would have nothing to transmit and the public would not be able to enjoy the works.

78. Second, I note that the process of uploading a file to a platform such as YouTube or Uploaded, once initiated by the user, is automatic, ( 57 ) without the platform operator selecting or determining in any other way the content that is published there. I wish to state that any, possibly automated, check made in advance by that operator does not, in my view, constitute selection ( 58 ) in so far as that check is confined to identifying illegal content and does not therefore reflect its intention to communicate certain (and not other) content to the public. ( 59 )

79. Lastly, those operators do not make further use of the ‘communications to the public’ initiated by their users since they do not retransmit the works concerned to a ‘new public’ or via a ‘different technical means’. ( 60 ) There is, in principle, only one ‘communication’, which is determined by the users in question.

80. In my view, it follows that, in principle, operators such as YouTube and Cyando merely provide ‘physical facilities’, as envisaged in recital 27 of Directive 2001/29, which enable users of their platforms to carry out a ‘communication to the public’, within the meaning of Article 3(1) of that directive, of works chosen by the latter. In my view, none of the arguments presented before the Court calls this interpretation into question.

81. First, unlike Mr Peterson, Elsevier and the German and French Governments, I consider that neither the fact that an operator such as YouTube structures how the videos uploaded by users are presented on the platform by integrating them into a standard viewing interface and indexing them under different categories, nor the fact that the operator provides a search function and processes the search results, which are summarised on the home page in various categories, is relevant. ( 61 )

82. In that regard, I note that that presentation structure and those various functions are intended to rationalise the organisation of the platform, to facilitate its use and, by doing so, to optimise access to the hosted videos. The requirement, which is implied by recital 27 of Directive 2001/29, that a service provider does not carry out a ‘communication to the public’ provided that it simply engages in the ‘mere’ provision of physical facilities does not, in my view, mean that the provider cannot optimise access to the content transmitted by organising its service. ( 62 ) Indeed, nothing requires the ‘physical facilities’ to be, in themselves, ‘mere’. In my eyes, the fact that an online platform has some degree of sophistication, the purpose of which is to facilitate the use of that platform, is therefore unimportant. The line that the provider cannot cross is, in my view, active intervention in the communication to the public of works, as envisaged in point 75 of this Opinion.

83. A presentation structure and such functions are not, in my eyes, capable of demonstrating that the operator crosses that line. They do not suggest, inter alia, that it determines the content uploaded by users on the platform. Optimising access to the content should not, in particular, be confused with optimising the content itself. The operator would determine what makes up that content only in the second case. ( 63 ) Furthermore, the fact that a platform such as YouTube includes a standard viewing interface does not, in my view, allow it to be concluded that the operator presents the content to the public in such a way that it appears to be its own, provided that that interface indicates which user uploaded each video.

84. Second, the fact that, on a platform such as YouTube, registered users are presented with an overview of ‘recommended videos’ is also not decisive in my view. It is not disputed that those recommendations influence the content viewed by those users. However, to the extent that the recommendations are generated automatically based on the videos previously viewed by the user in question and have as their sole purpose facilitating that user’s access to similar videos, they do not reflect the operator’s decision to communicate a given work to a public. In any event, the fact remains that that operator does not determine in advance which works are available on its platform.

85. Third, contrary to the submissions made by Mr Peterson and Elsevier, the fact that an operator such as YouTube stipulates, in the terms of service for its platform, that each user grants that operator a worldwide, non-exclusive, royalty-free licence to use the videos uploaded by them does not call into question my suggested interpretation, as this kind of stipulation, ( 64 ) which authorises the platform operator to disseminate the content uploaded by its users and by which it further claims automatically and systematically to acquire rights to all that content, ( 65 ) does not demonstrate, in itself, that the operator intervenes actively in the ‘communication to the public’ of works, as envisaged in point 75 of this Opinion. Since that stipulation applies, specifically, systematically and automatically to any content uploaded, it tends not to show that that operator decides what content is transmitted. On the other hand, if that same operator reuses, under that licence, content uploaded by users of the platform, ( 66 ) it carries out, to that extent, acts of ‘communication to the public’.

86. Fourth, I am not convinced by the argument put forward by Mr Peterson and Elsevier, according to which the business model adopted by operators such as YouTube or Cyando demonstrates that they do not merely engage in the ‘provision of physical facilities’ within the meaning of recital 27 of Directive 2001/29, but carry out the ‘communication to the public’ of works uploaded by users of their platforms. The applicants in the main proceedings assert in this regard that the remuneration received by those operators, which is generated inter alia from the sale of advertising space (the ‘YouTube’ model) or from subscriptions (the ‘Cyando’ model), is not the consideration for a technical service — in particular, the operators do not charge users for storage space as such — but depends on the attractiveness of the content uploaded on their platforms. In the case of YouTube, the advertising revenue earned increases with the number of visitors to the platform and in the case of Cyando the prospect of being able easily to make multiple downloads of attractive content encourages internet users to subscribe.

87. In general, the profit-making purpose pursued by a service provider is, to my mind, an element having entirely relative value in distinguishing acts of ‘communication to the public’ from such ‘provision’. On the one hand, I recall that, after reflection, ( 67 ) the Court ruled in Reha Training ( 68 ) — rightly in my view — that a profit-making nature is not a criterion for determining the concept of ‘communication to the public’, but may be taken into account in calculating any remuneration or reparation due to the author for such ‘communication’ ( 69 ). Thus, a profit-making nature can, at the most, be an indicator of the existence of such ‘communication’. ( 70 ) However, the profit-making purpose pursued by a service provider is an even less useful indicator in making such a distinction where, on the other hand, the provision of ‘physical facilities’ enabling a ‘communication to the public’ is generally carried out for such a purpose. ( 71 ) In particular, the vast majority of online intermediaries provide their services for remuneration.

88. More specifically, the fact that the remuneration received by operators such as YouTube and Cyando depends on the attractiveness of the content published on their platforms by users of those platforms does not indicate that the operators themselves carry out the ‘communication to the public’ of any works to be found there. I would reiterate that, in my view, the decisive criterion is whether the service provider intervenes actively in that ‘communication’, as explained in point 75 of this Opinion. That mere fact does not, in my eyes, allow that criterion to be established. ( 72 )

89. I believe that my suggested interpretation is confirmed by the Court’s case-law on trade mark law. In that regard, I note that, in Google France, the Court, sitting as the Grand Chamber, ruled that the use, as keywords in an internet referencing service such as the AdWords service provided by Google, of signs which are identical with or similar to trade marks, without the authorisation of their proprietors, constitutes a prohibited use of those trade marks within the meaning of EU law. Nevertheless, that use is made by the user of the referencing service, which chose those signs as keywords, and not by the service provider, which merely gives the user the means to do so. It is irrelevant that the provider is paid by its clients for the use of those signs. According to the Court, ‘the fact of creating the technical conditions necessary for the use of a sign and being paid for that service does not mean that the party offering the service itself uses the sign’. ( 73 )

90. Similarly, in L’Oréal v eBay, the Court, once again sitting as the Grand Chamber, ruled that the use, in offers for sale published in an online marketplace, of signs corresponding to trade marks, without the authorisation of their proprietors, constitutes a prohibited use of those trade marks. Nevertheless, there too, it is not the operator of the marketplace, but the users who published those offers for sale that engage in that use. To the extent that the operator simply allows users of its service to post such offers for sale and, in some cases, to use such signs on that marketplace, it does not make use of those signs itself. ( 74 )

91. It is not disputed that, in particular, eBay structures the overall presentation of the advertisements of its user/sellers, indexes them under various categories and has put in place a search function. That operator makes recommendations to user/buyers, automatically, of offers similar to those which they have previously viewed. Furthermore, the operators’ remuneration in the cases that gave rise to the judgments in Google France and in L’Oréal v eBay depends on the attractiveness of the content provided by the users of their services. In the AdWords service Google is paid on the basis of the number of clicks on advertising links using the keywords chosen by the user/advertisers. ( 75 ) eBay charges a percentage on transactions completed on the basis of the offers for sale posted in its marketplace. ( 76 ) These different factors clearly did not seem to be decisive or relevant to the Court, which did not even mention them in its reasoning. I therefore wonder why in the present cases they should be given the importance suggested by the applicants in the main proceedings. ( 77 )

92. In the light of all the above considerations, I suggest that the Court answer the first questions to the effect that the operator of a video-sharing platform and the operator of a file-hosting and -sharing platform do not carry out an act of ‘communication to the public’ within the meaning of Article 3(1) of Directive 2001/29 when a user of their platforms uploads a protected work there.

93. Consequently, those operators cannot be held directly liable under Article 3(1) of Directive 2001/29 where third parties make protected works available to the public through their platforms without the prior authorisation of the rightholders and without an exception or limitation being applicable. That conclusion does not rule out the possibility of some form of secondary liability on the part of those operators. This question must, however, be examined in the light of the rules on civil liability laid down by the Member States, which must observe the limits imposed by Articles 14 and 15 of Directive 2000/31. ( 78 )

2. The fact that Article 3(1) of Directive 2001/29 does not govern the secondary liability of persons facilitating the carrying out, by third parties, of illegal acts of ‘communication to the public’

94. As a preliminary point, it should be noted, first, that in GS Media the Court ruled, in line with its judgment in Svensson and Others, ( 79 ) that the fact of posting, on a website, hyperlinks to works published illegally on another website may constitute a ‘communication to the public’ within the meaning of Article 3(1) of Directive 2001/29. In essence, the Court held that, by posting such links, the person plays an ‘indispensable role’ because he or she gives the public ‘direct access’ to the works concerned. Nevertheless, such posting of links constitutes a ‘communication to the public’ only if it is shown that the person who posted them knew or ought to have known that those hyperlinks provided access to works illegally published on the internet; such knowledge must be presumed where that person pursued financial gain. ( 80 )

95. Then, in Stichting Brein I (‘Filmspeler’), the Court ruled that the sale of a multimedia player on which there are pre-installed add-ons containing hyperlinks to websites illegally streaming protected works constitutes a ‘communication to the public’. In that case, the Court held that the seller of the player was not simply engaged in a ‘provision of physical facilities’ but rather played an ‘essential role’ in the communication of the works on the ground that without the add-ons which it had pre-installed in the player, the purchasers of the player ‘would find it difficult to benefit from those protected works’, since the streaming websites concerned are not readily identifiable by the public. Furthermore, the Court focused on the fact that the seller of that multimedia player had knowledge of the fact that those add-ons enabled access to works broadcast on the internet illegally. ( 81 )

96. Lastly, in Stichting Brein II (‘The Pirate Bay’), the Court ruled that the making available and management of an internet platform which stores and indexes torrent files uploaded by its users, allowing them to share and download protected works in the context of a peer-to-peer network, constitutes a ‘communication to the public’. According to the Court, the operators of that platform did not simply engage in a ‘mere provision of physical facilities’ but played an ‘essential role’ in making the works available on the ground that, on the platform, they offered various ways, including a search function and an index of hosted torrent files, to make it easy to locate those files. Thus, without their intervention, ‘the works could not be shared by the users or, at the very least, sharing them on the internet would prove to be more complex’. In that case too, the Court stressed the fact that the operators of the platform had knowledge of the fact that works shared by the intermediary on that platform were generally shared illegally. ( 82 )

97. In principle, as I explained in point 56 of this Opinion, and as is stated in recital 23 of Directive 2001/29 and has been held by the Court on many occasions, ( 83 ) a ‘communication to the public’ within the meaning of Article 3(1) of that directive corresponds to the transmission of a work to a public. That recital specifies, in addition, that that provision ‘should not cover any other acts’. If, in the case of a work being made available, it is sufficient that the person at issue gives the public access to the work, that access must involve, as I noted in point 57 of this Opinion, making it possible for that work to be transmitted, at the request of a member of the public.

98. However, none of the acts at issue in those three judgments examined in this section consist, to my mind, in the actual or potential transmission of a work to a public. Stichting Brein II (‘The Pirate Bay’) provided the most representative example in this regard. Because the works shared on the peer-to-peer network were not published on the platform at issue, its administrators were not physically able to transmit them to the public. In fact, that platform merely facilitated transmissions made by its users on that network. ( 84 ) The same applied in GS Media and Stichting Brein I (‘Filmspeler’). The posting of the hyperlinks and the sale of the multimedia player at issue in those judgments facilitated access to the works illegally made available to the public on the websites in question. ( 85 )

99. To sum up, in my view, in those judgments the Court brought within the scope of Article 3(1) of Directive 2001/29 acts which, strictly speaking, do not constitute actual or potential transmissions of works, but which facilitate the carrying out of such illegal transmissions by third parties. ( 86 )

100. In addition, in those same judgments, the Court incorporated into the concept of ‘communication to the public’ a criterion relating to knowledge of the illegal act. However, as Elsevier and the French Government maintain, that concept does not, in principle, include such a criterion. Although the Court consistently rules that the existence of such ‘communication’ requires that the person concerned intervenes ‘in full knowledge of the consequences of its action’, ‘deliberately’, ‘intentionally’ or in a ‘targeted’ manner, ( 87 ) these different terms, in my view, simply seek to indicate, in principle, that, as I explained in point 72 of this Opinion, that concept implies an intention to transmit a work to a public. ( 88 ) That matter is, on the face of it, different from the issue of whether the person who carried out the ‘communication to the public’ of a work without the authorisation of the author is aware of the fact that that ‘communication’ is, in principle, illegal.

101. In that regard, as I stated in point 64 of this Opinion, under Article 3(1) of Directive 2001/29, the existence of a ‘communication to the public’ is — subject to the qualification mentioned in the preceding point — generally considered to be an objective fact. Whether that ‘communication’ is legal or illegal also does not, in principle, depend on the knowledge of the person who carries it out, but essentially on whether the author has authorised that ‘communication’. ( 89 ) The knowledge of that person is nevertheless taken into consideration at the stage at which it is decided what penalties may be imposed and what compensation that person may be ordered to pay. In particular, it is apparent from Article 13 of Directive 2004/48 that a person who infringes an intellectual property right knowingly or with reasonable grounds to know is obliged to pay to the rightholder damages appropriate to the actual prejudice suffered by him or her as a result of the infringement. Conversely, where a person did not knowingly or with reasonable grounds to know infringe, a lesser order in the form of the recovery of the profits that that person has made or the payment of pre-established damages may be delivered. ( 90 )

102. That being said, the fact that a person — in particular, an intermediary provider — knowingly facilitates the carrying out of illegal acts of ‘communication to the public’ by third parties is evidently reprehensible conduct. Nevertheless, it is generally accepted that that is a question of secondary liability, which falls within the rules on civil liability laid down by the Member States. ( 91 ) That secondary liability for infringements of copyright by third parties generally also involves some mental element such as knowledge of unlawfulness or intent. ( 92 )

103. I consider that, because Article 3(1) of Directive 2001/29 harmonises the material content of the right of ‘communication to the public’, it determines acts falling within that exclusive right and, to that extent, primary liability borne by those who commit such acts illegally. On the other hand, nothing in the wording of that provision or in the other provisions of that directive suggests that it was intended to govern matters of secondary liability. ( 93 ) That is especially notable as, when the EU legislature wishes for such questions to be covered by the measures which it adopts, it does not fail to stipulate this. ( 94 )

104. On those grounds, I have reservations about the reasoning applied by the Court in GS Media, Stichting Brein I (‘Filmspeler’) and Stichting Brein II (‘The Pirate Bay’). Irrespective of whether it would be desirable for there to be a uniform solution at EU level for the actions of persons who deliberately facilitate the carrying out by third parties of illegal acts, and even though such uniformity would help to ensure a high level of copyright protection, the fact remains that, in my view, no such provision is made in EU law as it stands at present. ( 95 ) It would be for the EU legislature to introduce a secondary liability regime into EU law.

105. I wish to emphasise that posting hyperlinks to works illegally published on a website when fully aware that it is illegal to do so, selling a multimedia player such as the ‘Filmspeler’ or managing a platform such as ‘The Pirate Bay’ must, of course, all constitute offences. However, it is not necessary to bring such actions within the field of application of Article 3(1) of Directive 2001/29 in order to achieve that result. I consider that a response to such actions can and must be found in the rules on civil liability or even the criminal law of the Member States. My suggested interpretation therefore does not leave authors unprotected in that regard.

106. Moreover, in Google France and L’Oréal v eBay, the Court opted not to extend, in trade mark law, the scope of primary liability to acts by intermediaries which could contribute to trade mark infringements committed by users of their services. The Court rightly referred to the rules on civil liability provided for in the law of the Member States and the limits laid down by Directive 2000/31. ( 96 ) I am therefore unsure that it is necessary to depart from that approach in the field of copyright, as EU legislation has been harmonised to a similar degree and pursues the same objective of a high level of protection of intellectual property in both these fields.

3. In the alternative — whether operators such as YouTube and Cyando deliberately facilitate the carrying out by third parties of illegal acts

107. Should the Court consider it appropriate, in the present cases, to apply the analytical framework adopted in GS Media, Stichting Brein I (‘Filmspeler’) and Stichting Brein II (‘The Pirate Bay’), despite the reservations I have expressed in the preceding section, I will offer, in the alternative, an examination of the present cases with regard to that analytical framework.

108. As I understand those judgments, the intervention of a person in the transmission of a work to a public, other than the person who, having determined that transmission, carries out the act of ‘communication to the public’ in the strict sense, must be treated in the same way as such an act of ‘communication’ if two criteria are satisfied.

109. First, the person in question must play an ‘essential role’ in the transmission. As it is understood in those judgments, a person plays that ‘role’ where they facilitate that transmission. ( 97 ) In this instance, operators such as YouTube and Cyando clearly satisfy that criterion.

110. Second, the intervention by that person must have a ‘deliberate nature’, which means that he or she must have knowledge that the communication that he or she is facilitating is illegal. The manner in which this criterion is to be interpreted in the present cases is much less clear. The problem arises because there is no framework in EU law relating to this mental element. I can therefore only speculate, drawing inspiration from the judgments in GS Media, Stichting Brein I (‘Filmspeler’) and Stichting Brein II (‘The Pirate Bay’), national case-law on secondary liability and the logic stemming from the conditions which intermediary providers must meet under Article 14(1)(a) and (b) of Directive 2000/31 in order to benefit from the exemption from liability under that provision. ( 98 )

111. In this regard, as the referring court states and as the Commission asserts, an operator such as YouTube or Cyando can, without any great difficulty, be considered to intervene ‘deliberately’ in the illegal ‘communication to the public’ of a particular work carried out through its platform if it had knowledge or awareness of the existence of the file containing the work in question — in particular if it had been notified of this — and it did not act expeditiously, upon obtaining such knowledge or awareness, to remove or to disable access to that file. ( 99 ) In such a situation, it is reasonable to take the view that, by failing to act when it had the power to do so, the operator approved that illegal‘communication’ or demonstrated manifest negligence. The questions of the circumstances in which an operator obtains such knowledge or awareness and whether, if necessary, it acted ‘expeditiously’ should, in my view, be determined on the basis of the same principles as are applied in connection with the conditions laid down in Article 14(1)(a) and (b) of Directive 2000/31. ( 100 )

112. On the other hand, like the Commission, and unlike Mr Peterson, Elsevier and the German and French Governments, I do not think that knowledge of the illegal act can be presumed merely because the operator in question pursues a profit-making purpose.

113. It is true that in GS Media the Court ruled that when the person who posts on a website hyperlinks to protected works published without the authorisation of their author on another website does so for the purpose of making a profit, it must be presumed (subject to rebuttal) that that person had knowledge of the protected nature of those works and of that lack of authorisation. ( 101 ) However, aside from the fact that, in its subsequent case-law, the Court seems to have confined this approach to hyperlinks, ( 102 ) I think that, in any event, this presumption cannot be applied in this present cases.

114. In GS Media, the operator of the website at issue had posted the contested links itself. It therefore had knowledge of the content to which those links led. As Cyando maintains, this circumstance formed the basis for a presumption of fact. On that basis, the Court could expect that operator to carry out the ‘necessary checks’ prior to posting to ensure that the works were not protected works, illegally published on the website to which those links led. ( 103 )

115. By contrast, I note that it is not generally the platform operator that uploads the content. To apply the approach adopted in GS Media in this context would be tantamount to saying that because the operator pursues a profit-making purpose in general, it could be presumed not only to have knowledge of all the files on its servers, but also to be aware of whether or not they are illegal, it being for the operator to rebut that presumption by showing that it made the ‘necessary checks’. Such an approach would amount to imposing on such an operator the general obligation to monitor the information which it stores and actively to seek facts or circumstances indicating illegal activity, contrary to the prohibition laid down in this regard in Article 15(1) of Directive 2000/31. ( 104 )

116. It must still be examined whether, as Mr Peterson, Elsevier and the French Government claim, operators such as YouTube and Cyando could be held liable because they had knowledge, in general and in the abstract, of the fact that their platforms are used by third parties (inter alia) to share protected works online illegally.

117. This question is highly complex. Like the YouTube and Uploaded platforms, many goods or services can be used both for legal or even socially desirable purposes and for illegal purposes. In my view, the provider of such goods or services cannot be held liable for illegal uses of them by third parties solely because it knows about or suspects such uses. Such a low liability standard would be likely to discourage the production and marketing of such goods or services to the detriment of their legal uses and, by extension, to inhibit the development of similar or innovative goods or services. ( 105 )

118. The mere fact that a provider profits from those illegal uses also cannot be decisive. In this connection, Mr Peterson, Elsevier and the French Government have highlighted that YouTube is financed, inter alia, through advertising on the platform, that the advertising revenue earned by it increases as attractive content is published there and it is ‘commonly accepted’ that in ‘the vast majority of cases’ the content is protected works uploaded without the authorisation of their authors. Aside from the fact that this logic seems somewhat simplistic for a platform such as YouTube, ( 106 ) I would point out that the revenue generated by advertisements placed indiscriminately on that platform is contingent on the overall number of visitors and therefore depends on both its legal uses and its illegal uses. Any provider of goods or services that might be subject to both kinds of use will inevitably derive some of its profits from users who purchase or utilise them for illegal purposes. Other facts must therefore be demonstrated.

119. In that regard, the purpose of a secondary liability regime should be borne in mind. As is clear from point 117 of this Opinion, in my view, such a regime must seek to discourage conduct that facilitates copyright infringements without, however, discouraging innovation or hindering any legal use of goods or services that can also be used for illegal purposes.

120. In that context, I concur with the Finnish Government that a service provider can be held liable, without it being necessary to show that that provider had knowledge or an awareness of specific copyright infringements, if it is shown that it had the intention, in providing its service, to facilitate the carrying out of such infringements by third parties. I consider that the judgments in Stichting Brein I (‘Filmspeler’) and Stichting Brein II (‘The Pirate Bay’) must be understood to this effect. In the first judgment, the Court stated that the seller of the ‘Filmspeler’ had general knowledge of the fact that the player could be used for illegal purposes. ( 107 ) In the second judgment, the Court held that the operators of ‘The Pirate Bay’ platform knew, in general, that it facilitated access to shared works without the prior authorisation of their authors and that, in any event, they could not be unaware of it, given that a very large number of torrent files on the platform related to such works. ( 108 ) In those cases, those persons openly expressed their intention to facilitate, through their player or platform, the carrying out of illegal acts of ‘communication to the public’ by third parties. ( 109 )

121. In this instance, neither YouTube nor Cyando openly touts the possibilities for illegal uses of their platforms. Mr Peterson and Elsevier nevertheless argue that those operators should be held liable in view of the way in which they have organised their services. On this point, the applicants in the main proceedings rely on several lines of reasoning: first, the operators showed wilful blindness to illegal uses of their platforms (by enabling their users to publish content there in an automated manner and without being checked in advance); second, they incite them to use those platforms illegally; and, third, they were negligent vis-à-vis those uses (because they failed to fulfil duties of care by not carrying out in advance any check of uploaded content either). ( 110 )

122. Some clarification is needed at the outset. In my view, an operator cannot be held liable, on grounds of wilful blindness or negligence, merely because it enables users of its platform to publish content there by an automated process and it does not carry out a general check on that content before it is uploaded. First, it cannot reasonably be claimed, although Elsevier does so, that by organising its platform in this way, the operator is quite simply seeking to evade any liability. ( 111 ) Second, Article 15 of Directive 2000/31 prevents such a provider from being expected to monitor in a general and abstract manner the information which it stores and actively to seek illegal activity on its servers. It is not therefore possible to consider that the fact that it does not carry out such general monitoring is tantamount to wilful blindness or negligence. ( 112 ) Furthermore, and more generally, the mere negligence of a provider should not, by definition, be sufficient — without prejudice to the situation envisaged in point 111 of this Opinion — to show that that provider is intervening ‘deliberately’ to facilitate the copyright infringements committed by users of its service.

123. That being said, in my view, the way in which a provider organises its service can, in some circumstances, actually show the ‘deliberate nature’ of its intervention in illegal acts of ‘communication to the public’ committed by users of that service for the purposes of Article 3(1) of Directive 2001/29, as interpreted by the Court in GS Media, Stichting Brein I (‘Filmspeler’) and Stichting Brein II (‘The Pirate Bay’). Such is the case where characteristics of that service demonstrate the bad faith of the provider in question, which may take the form of an intention to incite or wilful blindness towards such copyright infringements. ( 113 )

124. In that regard, it is appropriate, in my view, to check, first, whether the characteristics of the service in question have an objective explanation and offer added value for legal uses of that service and, second, whether the provider took reasonable steps to combat illegal uses of that service. ( 114 ) On this point, the provider again cannot be expected, in accordance with Article 15(1) of Directive 2000/31, to monitor in a general manner all the files which users of its service intend to publish before they are uploaded. The second part of the test should, to my mind, rather constitute a defence for service providers. In that respect, the fact that the provider generally complies diligently with the obligations to remove content under Article 14(1)(b) of that directive or any obligations which might have been imposed on it by an injunction or the fact that that provider voluntarily took other measures, will tend to show its good faith.

125. In the present instance, it is for the national court to apply that test to operators such as YouTube and Cyando. Nevertheless, it seems appropriate to me to offer some guidance in that respect.

126. In the first place, in my view it is difficult, given the characteristics of a platform such as YouTube, to accept that its operator intends to facilitate illegal uses of that platform. In particular, the fact that the platform’s search and indexing functions facilitate, where appropriate, access to illegal content cannot constitute an indicator of that intention. Those functions have an objective explanation and offer added value for legal uses of that platform. Although in Stichting Brein II (‘The Pirate Bay’) the Court highlighted the fact that the operators of the platform at issue had introduced a search engine and indexed the hosted files as an indicator of the ‘deliberate nature’ of their intervention in the illegal sharing of protected works, ( 115 ) that assessment cannot be seen in isolation from the particular context of that case, characterised by an intention, expressed by the operators, to facilitate copyright infringements.

127. Furthermore, contrary to the assertion made by Elsevier, I consider that the fact that a platform operator such as YouTube enables some users to insert advertisements into their videos and pays them a proportion of the revenue generated ( 116 ) is not sufficient to indicate an intention to incite users to upload protected works without the authorisation of their authors. On the contrary, it is not in dispute that, in the case of YouTube, those advertisements are inserted via Content ID, which is intended to ensure that this possibility is available only to rightholders, as it automatically detects video uploads by third parties containing protected works and, where necessary, allows those rightholders themselves to place advertisements in the video in question and to receive the advertising revenue from it. ( 117 )

128. This leads me to the fact that YouTube also put in place tools, that software in particular, in order to combat copyright infringement on its platform. ( 118 ) That fact goes some way towards demonstrating that operator’s good faith as regards the illegal use of its platform, as I indicated in point 124 of this Opinion. ( 119 )

129. In the second place, I fear, however, that matters are less clear for Uploaded. In that regard, on the one hand, I do not concur with Elsevier that the fact that an operator allows users of its platform to upload files ‘anonymously’ there shows its intention to facilitate infringements. It is clear from the documents before the Court that in order to upload a file to Uploaded it is necessary to create an account, providing a first name, surname and email address. Elsevier thus criticises the fact that Cyando does not check the accuracy of the information provided by the user by means of an identity verification or authentication system. Although the possibility for anyone to use the internet and online services without an identity check can indeed be misused by ill-intentioned individuals for wrongful activities, I consider that that possibility is, however, protected, above all, by such fundamental norms as the right to privacy, freedom of expression and conscience and data protection, particularly in EU law ( 120 ) and international law. ( 121 ) Identity verification or authentication systems thus may be used, in my view, only for specific services in certain circumstances laid down in law.

130. The mere fact that a file hosting service such as Uploaded generates download links for hosted files and permits users to share them freely also fails, to my mind, to demonstrate an intention to facilitate copyright infringements. Those links have an objective explanation and offer added value for legal uses of the service. Even the proportion of illegal uses of Uploaded — for which the parties in the main proceedings offer radically different estimates ( 122 ) — cannot, in my eyes, in itself demonstrate that that operator has that intention, in particular if the latter has taken reasonable steps to combat such uses.

131. On the other hand, I am, nevertheless, unsure about the ‘partnership’ programme implemented by Cyando. I recall that under that programme Cyando pays remuneration to some users according to the number of downloads of the files uploaded by them. ( 123 ) I harbour doubts as to the objective explanation and the added value of such a programme for legal uses of the service. On the other hand, it has been established before national courts that that programme has the effect of encouraging users to upload popular works so that they can be downloaded illegally. I therefore cannot rule out that the ‘deliberate nature’ of a provider’s intervention in illegal acts committed by its users may be inferred from the implementation of that programme. ( 124 ) This would, where appropriate, be for the national court to verify.

B. The field of application of the exemption from liability under Article 14(1) of Directive 2000/31 (second questions)

132. As I have mentioned, Section 4 of Directive 2000/31 contains a number of provisions relating to the liability of intermediary service providers. Within that section, Articles 12, 13 and 14 of the directive each envisage, in their paragraph 1, a ‘safe harbour’ for ‘mere conduit’, ‘caching’ and ‘hosting’ activities respectively. ( 125 )

133. Article 14(1) of Directive 2000/31 applies, more precisely, where ‘an information society service is provided that consists of the storage of information provided by a recipient of the service’. That provision stipulates, in essence, that the provider of such a service cannot be held liable for the information which it stores at the request of its users unless the provider, upon obtaining knowledge or awareness that the recipient’s information is illegal, has not expeditiously removed or disabled access to it.

134. I must point out that the purpose of this provision is not to determine positively the liability of a provider. It simply limits negatively the situations in which it can be held liable on that basis. In addition, the exemption laid down by that provision concerns only liability that may result from the information provided by users of its service. It does not cover any other aspect of that provider’s activity. ( 126 )

135. By its second questions, the Bundesgerichtshof (Federal Court of Justice) wishes, in essence, to know whether operators such as YouTube and Cyando can benefit from Article 14(1) of Directive 2000/31 with regard to the files that they store at the request of users of their platforms.

136. In my view, that is generally the case. I do, however, consider it necessary, before I explain my position, to clarify one point concerning the relationship between that provision and Article 3(1) of Directive 2001/29.

137. I note that the referring court has asked its second questions only if the Court answers the first questions in the negative — as I have suggested that it should — to the effect that operators such as YouTube and Cyando do not carry out the ‘communication to the public’ within the meaning of Article 3(1) of Directive 2001/29 of works uploaded — at times illegally — by users of their platforms. It thus seems to presume that, on the (contrary) hypothesis that those operators are directly liable under Article 3(1) for such illegal ‘communications’, they may not, as a matter of principle, rely on the exemption under Article 14(1) of Directive 2000/31. ( 127 )

138. However, Article 14(1) of Directive 2000/31 applies, horizontally, to all forms of liability which the providers in question may incur in respect of any kind of information which they store at the request of the users of their services, whatever the source of that liability, the field of law concerned and the characterisation or exact nature of the liability. That provision therefore covers, in my view, both primary and secondary liability for the information provided and the activities initiated by those users. ( 128 )

139. Therefore, in my view, while Article 14(1) of Directive 2000/31 is, as a matter of principle, inapplicable where a provider communicates to the public its ‘own’ content, that provision may, on the other hand, be applicable where, as is this case in this instance, the content communicated was provided by the users of its service. ( 129 ) That interpretation is, in my eyes, substantiated by the fact that neither that provision nor Article 3(1) of Directive 2001/29 makes an exception for providers which carry out the ‘communication to the public’ of works provided by users of their services. On the contrary, recital 16 of Directive 2001/29 states that the directive applies ‘without prejudice to provisions relating to liability in [Directive 2000/31]’.

140. It follows that, if, contrary to what I suggest, the Court answered the first questions in the affirmative, it should still answer the second questions in order to provide the referring court with an answer which will be of use to it. That being so, the criteria governing a ‘communication to the public’ within the meaning of Article 3(1) of Directive 2001/29 and the conditions for the application of Article 14(1) of Directive 2000/31 can be interpreted consistently, as I will explain, in order to avoid, in practice, any overlap between these articles.

141. Having given that clarification, it is clear from Article 14(1) of Directive 2000/31 that the scope of that provision depends on two cumulative conditions: first, an ‘information society service’ must be provided; second, that service must ‘[consist] of the storage of information provided by a recipient of the service … at the request of a recipient of the service’.

142. Interpreting the first condition does not raise any difficulties in the present cases. I note in this regard that the concept of ‘information society service’ means ‘any service normally provided for remuneration, at a distance, by electronic means and at t