Advocate General Saugmandsgaard Oe has recommended that the CJEU finds that platforms do not engage in CTP: "Any ‘primary’ liability arising from that ‘communication’ is therefore borne, as a rule, solely by those users."
This suggests that the Copyright Directive was not simply a reflection of CJEU jurisprudence, but rather a dramatic break with current law. It will be interesting to see how the CJEU deals with the AG opinion.
Directive 2019/790 on copyright and related rights in the Digital Single Market1 introduces, for online platform operators such as YouTube, a new liability regime specific to works illegally uploaded by the users of such platforms. That directive, which must be transposed by each Member State into its national law by 7 June 2021 at the latest, requires, inter alia, those operators to obtain an authorisation from the rightholders, for example by concluding a licensing agreement, for the works uploaded by users of their platforms. That directive is not yet applicable to the cases at hand. The Court of Justice is therefore invited to specify the liability of those operators under the regime currently in force[...].