These are exciting times for platforms of user-generated content. This week, for example, Europe voted for a revised Copyright Directive with the much-discussed Article 13. This provision makes platforms responsible and liable for the content users upload. As a result, platforms will, in all likelihood, start using an upload filter; a measure that platforms, and for that matter many other stakeholders, do not want. However, the revised Copyright Directive is currently still a long way off so the question arises as to what the situation is now regarding the liability of platforms?
Author: Jesse Vermeij
For now, platforms, such as YouTube and Google, seem immune from liability if they use a "notice and takedown" procedure: once a person files a (justified) complaint, the infringing or unlawful content is removed by a platform. However, a long-running case is now occurring in Germany in which YouTube had failed to comply with a request to remove the infringing content. The content, consisting of clips of a German singer, remained available online upon which the producer filed a lawsuit against the platform, claiming damages.
Meanwhile, the highest German court has considered the matter and decided to submit preliminary questions to the European Court. Freely translated (from the German), those questions boil down to the following:
Does the operator of an online video platform, on which users post copyrighted content without the consent of the proper owners, commit a violation of Article 3 of the InfoSoc Directive when:
the platform derives revenue from advertisements, the uploads are an automated process, without any control or checks by the platform before the content goes online;
the platform receives (according to the terms of service) a worldwide, non-exclusive and free license for the uploaded videos as long as the video is online;
the platform reminds users that uploading content that infringes third-party copyrights is prohibited;
the platform provides rights owners with tools to remove infringing content;
platform sorts videos into categories and by rank, and suggests further videos to registered users according to previously viewed videos;
provided that the platform has no actual knowledge of illegal activity or information or, upon gaining such knowledge or awareness, acts expeditiously to remove or prevent access to the information.
Does the operator of an online video platform, on which users post copyrighted content without the consent of the proper owners, commit a violation of Article 3 of the InfoSoc Directive when:
Does the platform have "knowledge of facts or circumstances which clearly demonstrate the unlawful nature of the activities or information," as in Article 14(1)(a) Rel, and does this phrase refer to concrete infringements (in this case, the specific infringing URL)?
s it compliant with Article 8(3) InfoSoc Directive if a rights holder can seek an injunction from an intermediary only when a second violation has occurred, after the intermediary had already been informed (and responded to) a first violation?
And, if these questions are answered in the negative, whether the platform operator is liable for damages as an "infringer" as in Articles 11 and 13 of the Enforcement Directive?
So the ball is now in the European Court's court. Of particular interest is whether the Court will anticipate the upcoming revised Copyright Directive and whether there may be a new extension of the concept of "communication to the public. To be continued....
