This week, copyright is all over the place. After the European Parliament voted on proposed copyright reform in Europe last Wednesday (12 September 2018), the long-awaited decision of the German Federal Court of Justice (BGH) on the question to what extent video platforms such as YouTube carry out their own acts of use, i.e. a communication to the public, followed one day later. If it is only the user uploading the content, and not the platform, who carries out the copyright-relevant act, the platform can rely on the Safe Harbor provisions of the E-Commerce Directive 2000/31.

The German judges are keeping the tension high. With today’s decision (Case Ref.: I ZR 140/15, press release only available in German) they initially suspended the proceedings and submitted a series of questions to the European Court of Justice (CJEU) on the interpretation of Art. 3(1) of the InfoSoc Directive 2001/29. The provision contains the definition of a “communication to the public“. Particularly against the background of the legislative process currently underway in Brussels and Strasbourg, which also addresses the issue of the responsibility of so-called “online content sharing service providers” in Article 13 of the draft directive, the decision of the European Court of Justice is eagerly awaited. It is worth mentioning that the BGH has already indicated the way in which it thinks the questions should be answered.

The Background

The plaintiff is a music producer. He claims to hold the rights to the studio album “A Winter Symphony” by the singer Sarah Brightman. Individual titles of the album as well as concert recordings were uploaded to YouTube at the beginning of November 2008 without the plaintiff’s consent. It is undisputed that the upload constituted a copyright infringement on the part of the respective users. However, they acted under pseudonyms and are therefore unknown. For this reason the plaintiff turned to YouTube. As a result, YouTube blocked some of the videos, which, however, were made available again on the video platform a short time later. This led to a lawsuit in which the plaintiff demanded from YouTube, inter alia, injunctive relief, disclosure of user data and ultimately the payment of damages.

In the first instance, the Regional Court of Hamburg approved the plaintiff’s claim to injunctive relief in respect to three of the videos at issue. Upon appealing, the Hanseatic Higher Regional Court of Hamburg granted injunctive relief also in respect to four further videos. Also, the plaintiff was awarded a right to information regarding those users who had uploaded the disputed videos under pseudonyms. In all other respects, in particular with regard to the liability for damages, the claim was dismissed in its entirety. YouTube did not carry out any acts of copyright infringement, according to the judges.

Meanwhile, the German Federal Court of Justice has suspended the proceedings and has submitted to the European Court of Justice some specific questions regarding the interpretation of the term “communication to the public“, as well as the understanding of the liability privilege for hosting providers laid down in Art. 14 of the E-Commerce Directive. In the course of the announcement of the decision, the Court made it clear that they were inclined to deny an independent act of use (i.e. copyright infringement) in the case of YouTube. In its view, the platform should benefit from the Safe Harbor of the E-Commerce Directive.

The Questions submitted

Especially against the background of some recent rulings by the CJEU on European copyright law – compare for example The Pirate Bay (C 610/15, blog post) or Filmspeler (C-527/15, blog post) – the judgment in this case was much anticipated. The Luxembourg judges now have to deal with the following questions:

1- whether the operator of an online video platform on which users make available to the public copyright protected content without the right owners’ consent commit acts of communication to the public within the meaning of Art. 3 of the InfoSoc Directive if

  • the platform makes 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 TOS) a worldwide, non-exclusive and free license for the uploaded videos for the duration the video is online
  • the platform reminds users in the TOS and during the upload process that uploading content that infringes third parties’ copyrights is prohibited
  • the platform provides rights owners with tools to have infringing content removed
  • the platform sorts videosinto categories and lists them by ranking, and suggests further videos to registered users according to videos previously watched

provided the platform does not have actual knowledge of illegal activity or information or upon obtaining such knowledge or awareness, acts expeditiously to remove or to disable access to the information”.

2- whether the liability privilege for hosting providers under Article 14(1) of the E-Commerce Directive 2000/31 applies to the video platform and “whether the actual knowledge of the unlawful activity or information and the awareness of the facts or circumstances from which the unlawful activity or information becomes apparent must relate to concrete unlawful activities or information.

3- whether it is compatible with Article 8(3) of the InfoSoc Directive if the right holder cannot obtain a court order against the video platform until such an infringement has occurred again after a warning of a clear infringement.

4- In the event that questions 1 to 3 are answered in the negative, the BGH would like to know whether the operator of the video platform may be liable for damages as an infringer within the meaning of Art. 11(1) and Art. 13 of the Enforcement Directive 2004/48.

Commentary and Outlook

Anyone who has followed the discussions at European level in recent months will recognize that today’s decision by the German Federal Court of Justice picks up on a discussion that is currently being conducted in a sometimes very heated manner in relation to the proposed new Copyright Directive. It is about the question of a possible intensification of the liability of content sharing platforms. Some endorse the goal, others warn against so-called upload filters, which would pose a threat to the free Internet and the freedom of expression.

If one breaks down the debate, which was conducted in part very emotionally, especially on the political stage, to a factual basis, it can be stated that in fact a not inconsiderable part of the content available on the Internet was uploaded in violation of the rights of the authors. The Internet also makes anonymity possible, which makes it more difficult to prosecute the actual users. But it is also true that the technical filtering and separation of illegal content from legitimate content is extremely difficult. This is partly due to the sheer amount of content that is uploaded daily, but also to the limited resources available today. Even in times of artificial intelligence, there are limits to targeted filtering.

It should not go unmentioned that large amounts of unauthorized content are already being filtered out via so-called content IDs. Even notice-and-take-down proceedings are already leading to a reduction of illegal uploads. And at the end of the day, the right holder is also supported by the German concept of the so-called “Störerhaftung” developed by the courts, should platform operators fail to respond to such information. The way the situation is being presented by some commentators and lobbyists therefore does not reflect the whole truth.

With Article 13 of the proposed Copyright Directive, the European legislator wants to master this problem. However, the form of the provision is highly controversial (see our blog post). The European Parliament proposes that certain “online content sharing service providers” by law are liable for carrying out an act of communication to the public. Against this background, it is also interesting to see how the European Court of Justice will comment on the question of whether YouTube carries out an act of communication to the public. The BGH is inclined to answer this question in the negative. This is due to the fact that in the end YouTube is rather passive, while the user plays the actual active role.

Another hearing is scheduled for next week in Karlsruhe, which will again deal with the interpretation of the concept of a “communication to the public“. The BGH will have to answer the question of whether the operator of a sharehosting service makes a communication to the public (see the corresponding German press release). It remains to be seen whether the Federal Supreme Court will also refer the questions in those proceedings to the European Court of Justice for a preliminary ruling.