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EU Court Reconsiders YouTube’s Liability For Copyright Infringement

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EU Court Reconsiders YouTube’s Liability For Copyright Infringement

Postby MrFredPFL » Tue Sep 10, 2019 1:29 am

Story :

Under current EU law, the question of liability focuses on the application of the ‘take down’ rules under the Electronic Commerce Directive of 2000 (the equivalent of the Digital Millennium Copyright Act in the US). The rule essentially shields the hosting of content by an online platform if it acts expeditiously to remove the content upon gaining knowledge or awareness of the infringement. However, the EU’s new directive on copyright in the Digital Single Market, which was adopted on 26th March 2019, is designed to shift the balance struck under the e-Commerce Directive between content creators and online platforms. Although the new directive will not abolish the existing ‘take down’ principle, these rules will be replaced, as far as content sharing platforms are concerned, with new rules that will give creators and rightholders more control over their content and impose more responsibility on the platform operators before they can enjoy protection against liability in relation to infringing content uploaded and shared by users on the platform. As German MEP Julia Reda suggested, the new directive means services would have to “buy licences for anything that users may possibly upload” and called it an “impossible feat”. Google, which operates the YouTube platform, has been a prominent advocate against the new directive.

The new legislation is yet to be implemented by EU member states into their national laws (they have two years to do so). For the time being, the the Austrian and German courts are raising a familiar set of questions concerning the current ‘take down’ rules under EU law, but the answers the court offers could also reflect on some aspects of the new legislation.

Firstly, they ask whether YouTube involve itself ‘too much’ in the infringing content so as to make it more than a “mere host”. The principle established by the EU court is that the immunity from liability enjoyed by a ‘hosting service’ is only available to a service insofar as it stores data through automatic and neutral processes, without knowledge or awareness of actual infringements (or that it acts expeditiously to remove the infringing content upon becoming aware of the infringement).

The national courts ask whether YouTube exceed those parameters by providing a variety of added services to users on its platform that allegedly go beyond mere data storage, such as viewing recommendations and search facilities, as well as tips on how to use the platform and the placing of advertisements, in some cases linked to the content viewed by the users. It is also noted by the referring courts that YouTube takes a license to exploit any uploaded content and that its terms and conditions state that infringing content may be removed.

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