YouTube, what the EU Court has decided
The Court of Justice of the EU and the limits of liability for online platforms. But the picture has changed with the copyright directive. The speech by Enzo Mazza, CEO of Fimi (Federation of the Italian music industry)
With the decision of the major European court, a new step is established in the evolution of online copyright protection.
According to the judges, who have expressed themselves on some joined cases, and decided according to the current legislation in force, the operators of online platforms do not themselves, in principle, communicate to the public content protected by copyright that their users illegally put online.
However, these platforms make a communication in violation of copyright if they contribute, beyond simply making the platforms available, to give the public access to such content.
It is a decision that basically summarizes the elements that characterize an active liability or absence of liability in case of passive activity, which follows the principles of the E-Commerce Directive and the 2001 Copyright Directive.
THE FIRST CAUSES
In the dispute at the origin of the first case (C-682/18), Frank Peterson, a music producer, is suing YouTube and his legal representative Google before the German courts over the posting on YouTube, in 2008, of various phonograms on which he claims to have various rights. This networking was carried out by users of that platform without his authorization. These are songs from Sarah Brightman's A Winter Symphony album as well as private audio recordings made during concerts on her Symphony Tour.
In the dispute at the origin of the second case (C-683/18), the publisher Elsevier is suing Cyando before the German courts regarding the networking on its Uploaded file hosting and sharing platform, in 2013, of several works on which Elsevier holds exclusive rights. This networking was carried out by users of that platform without his authorization. These are the works Gray's Anatomy for Students, Atlas of Human Anatomy and Campbell-Walsh Urology, which could be consulted on Uploaded through the link collections rehabgate.com , avaxhome.ws and bookarchive.ws .
The disputes come before the EU supreme court, just as the new copyright directive is approved in Strasbourg, which shuffles the cards.
WHAT THE COURT SAYS
The Court highlights, among these criteria, the essential role of the platform manager and the intentional nature of his intervention. In fact, the manager carries out an "act of communication" when he intervenes, with full knowledge of the consequences of his behavior, to give his customers access to a protected work, in particular when, in the absence of said intervention, such customers could not, in principle, to benefit from the widespread work.
In this context, the Court finds that the operator of a video-sharing platform or a hosting and file-sharing platform, on which users can illegally make protected content available to the public, does not make a "communication to the public" of said contents, pursuant to Directive 2001/29, unless it contributes, beyond the simple provision of the platform, to giving the public access to such contents in violation of copyright.
This occurs, in particular, if this manager is concretely aware of the illegal provision of a protected content on its platform and refrains from removing it or immediately blocking access to it, or in the event that said manager, also if you know or should know that, in general, protected content is unlawfully made available to the public through its platform by users of the latter, refrain from implementing the appropriate technical measures that can be expected from a normally diligent operator in its situation to credibly and effectively counter copyright violations on this platform, or in the event that it participates in the selection of protected content unlawfully disclosed to the public, provides on its platform tools specifically intended for the illicit sharing of such content or knowingly promotes such sharing, which can be attested arisen from the fact that the manager has adopted an economic model that encourages the users of its platform to illicitly proceed with the disclosure to the public of protected content on the same.
Furthermore, the Court confirms, under the e-commerce directive, that an operator can benefit from the exemption from liability, provided that it does not play an active role suitable for giving it knowledge or control of the content uploaded to its platform. The Court emphasizes in that regard that, in order to be excluded from the benefit of the exemption from liability provided for by that directive, such an operator must be aware of the specific illegal acts of its users relating to protected content which have been uploaded to its platform.
These aspects are fundamental because they confirm the relevance of the monitoring activities by the holders of the rights and of the notice & take down systems to report illegal content.
THE NEW COPYRIGHT DIRECTIVE
An online content sharing service provider therefore needs to obtain an authorization from the right holders.
Therefore, with this new important legislation also the last element of uncertainty that today's decision of the EU Court had left open is resolved.
This is a machine translation from Italian language of a post published on Start Magazine at the URL https://www.startmag.it/innovazione/responsabilita-piattaforme-direttiva-copyright-corte-giustizia-ue/ on Tue, 22 Jun 2021 11:07:20 +0000.