European Union: Reconsidering The Liability Of Content Sharing Platforms For Copyright Infringement

Since its creation in 2005 (and acquisition by Google in 2006), YouTube has grown to be the biggest video sharing platform on the Internet. There are approximately 1.8 billion users per month, with an estimated 300 hours of video uploaded every minute.

Liability for Infringement

As with any sharing platform that relies on user curated content, ensuring this will not infringe third party intellectual property rights is an extremely difficult task. Under the current European Union legal framework, YouTube is protected under 'notice and take-down rules' – ensuring that provided it acts expeditiously to remove infringing content upon being made aware this, it will not be liable for such infringements.

The DSM

The European Union's DSM directive (on copyright in the single market) was approved by parliament on 26^th March 2019. The objective of the DSM directive is to "modernize the EU rules applicable to key exceptions and limitations in the areas of teaching, research and preservation of cultural heritage, focusing in particular on digital and cross-border uses¹."

This means that the take down rules will be replaced with legislation that gives copyright owners more control and protection in relation to the use of their content by online sharing platforms. Article 17 for example requires website operators to introduce 'effective and proportionate measures' to prevent infringements, which could require the use of content filters (previously covered by HGF here).

Referrals

Recently two referrals have been made from the Austrian and German national courts to the Court of Justice of the European Union (CJEU), relating to videos posted on YouTube which, although they relate to the current legislation are likely to be relevant to certain aspects of the new DSM directive.

Austria

C-500/19 concerns a case where YouTube was asked to remove infringing content owned by an Austrian TV channel. YouTube complied, but the Claimant requested that no further videos with infringing content be made available. YouTube argued that it did not have knowledge of such infringements, given that the videos were uploaded by users. Although the Claimant was successful at first instance, YouTube was successful on appeal, with the claim being stayed and a referral being made to the CJEU. The Claimant argues that YouTube plays an active role, which provides it with knowledge relating to such infringements.

Germany

C-682/18 is a referral as to whether the operator of a platform on which videos protected by copyright is carrying out an act of communication where these videos are publicly accessible.

Both cases feature overlapping questions in particular - whether knowledge of the infringements relates to specific infringement only, or whether this knowledge constitutes constructive knowledge, and secondly whether YouTube is too involved to be a mere host, given that among other things it suggests videos and adverts relating to the video content.

Comment

If the CJEU finds in favour of the Claimants in the above referral, the legal ramifications could be far reaching, not just for the operators of video sharing platforms such as YouTube, but for anyone operating a business that utilises user-curated third party intellectual property.

From an operator perspective, such businesses will need to ensure that they have the systems in place to monitor any content uploaded to their sites (such as content filtering systems), to ensure it is non-infringing, but also to have the resources to carry out the potentially difficult and onerous task of preventing repeat offenses which are not picked up by filters.

From a copyright owner's perspective such a decision may be welcomed, but this is only effective as far as they too have the resources to monitor and police infringements. Although such legal developments may act as a deterrent to some infringers, in the case of repeat offenders, ensuring adequate staff, finances and an appropriate legal strategy are in place to respond to repeat infringements will equip businesses with the necessary powers to combat infringements.

Footnotes

1 https://ec.europa.eu/digital-single-market/en/modernisation-eu-copyright-rules

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