European Court of Justice must rule on YouTube's liability for copyright infringements

 

 

The Highest Federal Court of Germany (BGH) has submitted several questions to the ECJ concerning the liability of the operator of the YouTube Internet video platform for copyright infringing content uploaded by third parties.

 

The plaintiff is a music producer. In 1996, he concluded an exclusive artist contract with the singer Sarah Brightman, which entitles him to exploit recordings of her performances. In November 2008, the studio album "A Winter Symphony" was released with musical works interpreted by the singer. At the same time, the artist began the concert tour "Symphony Tour", during which she presented the works recorded on the album. The plaintiff alleges that he produced this album. Defendant 3, YouTube LLC, operates the Internet platform "YouTube", on which users can post audiovisual contributions free of charge and make them accessible to other Internet users. Defendant 1, Google Inc., is the sole shareholder of Defendant 3, and at the beginning of November 2008, "YouTube" featured videos of musical works from Sarah Brightman's repertoire, including private concert recordings and musical works from her albums. The plaintiff wrote a lawyer's letter to a sister company of the defendant zu 3 in which he called on the sister company and the defendant zu 1 to make statements subject to criminal penalties, to refrain in future from reproducing sound recordings or musical works from his repertoire or to make them publicly available. The sister company forwarded the letter to the defendant 3 . In any case, the latter blocked part of the videos. On 19.11.2008 videos were again available on "YouTube".

The plaintiff has asserted claims against the defendants for injunctive relief, disclosure of information and determination of their liability to pay damages. The Regional Court upheld the complaint in respect of three music titles and dismissed the remainder. The Court of Appeal ordered the defendants to refrain from allowing third parties to make sound recordings or performances of the artist Sarah Brightman from the studio album "A Winter Symphony" publicly accessible in respect of seven specified music titles. It also ordered the defendants to provide the requested information about the users of the platform who uploaded these music titles to the Internet portal under pseudonyms. In all other respects it rejected the complaint. The plaintiff pursues its complaint requests further with its revision. The defendants strive for the complete dismissal of the complaint with their revision.

 

The BGH stayed the proceedings and referred questions to the ECJ on the interpretation of Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society, Directive 2000/31/EC on electronic commerce and Directive 2004/48/EC on the enforcement of intellectual property rights.

 

In the opinion of the BGH, the question arises as to whether the operator of an Internet video platform on which users make videos with copyrighted content publicly accessible without the consent of the rightholders is performing an act of reproduction within the meaning of Art. 3 (1) of Directive 2001/29/EC if

 

- he generates advertising revenue with the platform, the uploading process takes place automatically and without prior viewing or control by the Operator,

- the operator receives a worldwide, non-exclusive and royalty-free license to the videos for the duration of the placement of the video according to the terms of use,

- the operator points out in the terms of use and in the context of the upload process that copyright infringing content may not be uploaded,

- the operator makes available tools with the help of which rights holders can work towards the blocking of videos that violate the law,

- the operator processes the search results on the platform in the form of rankings and content categories and allows registered users to view an overview with recommended videos based on videos already viewed by them,

insofar as it has no concrete knowledge of the availability of copyright-infringing content or immediately deletes such content or blocks access to it after gaining such knowledge.

 

With further preliminary questions, the BGH would like to know whether the activity of the operator of such an Internet video platform falls within the scope of Art. 14 (1) of Directive 2000/31/EC and whether the actual knowledge of the illegal activity or information and the awareness of the facts or circumstances from which the illegal activity or information becomes obvious must relate to specific illegal activities or information.

 

Furthermore, the BGH asks whether it is compatible with Article 8 (3) of Directive 2001/29/EC if the right holder can only obtain a court order against a service provider whose service consists of the storage of information entered by a user and which has been used by a user to infringe a copyright or related property right if such an infringement has occurred again after an indication of a clear infringement.

 

In the event that the answer to the above questions is in the negative, the BGH finally asks whether, under the circumstances described in the first question, the operator of an Internet video platform is to be regarded as an infringer within the meaning of Art. 11 sentence 1 and Art. 13 of Directive 2004/48/EC and whether the obligation of such an infringer to pay damages in accordance with Art. 13 (1) of the Directive 2004/48/EC should be excluded. 13 (1) of Directive 2004/48/EC may be made dependent on the infringer having acted intentionally both in relation to his own infringing act and in relation to the infringing act of the third party and having known or reasonably should have known that users use the platform for specific infringements.

 

Previous instances

LG Hamburg, dated 03.09.2010 - 308 O 27/09

OLG Hamburg, jurisdiction from 01.07.2015 - 5 U 175/10

 

Source: Press release of the BGH No. 150/2018 of 13.09.2018