17 September 2018Copyright

Germany seeks clarity from CJEU on YouTube’s copyright liability

Germany’s Federal Court of Justice (Bundesgerichtshof) has asked the Court of Justice of the European Union (CJEU) whether YouTube is liable for IP violations that occur on its video-sharing platform.

The Federal Court of Justice announced that it had referred the matter to the CJEU on Thursday, September 13.

Frank Peterson, a music producer based in Hamburg, accused YouTube of infringing his copyright in a number of songs and concert clips featured on the platform.

In the lawsuit, filed in 2008, Peterson claimed that he owns the rights to British singer Sarah Brightman’s material and YouTube had hosted illegal clips of her songs. The producer sought compensation for the infringement.

In 2010, the Regional Court of Hamburg (Landgericht Hamburg) said that YouTube can be held liable for copyright infringement that occurs on its platform. The court upheld Peterson’s claims and awarded injunctive relief and damages.

On appeal, the Hanseatic Higher Regional Court in Hamburg (Hanseatische Oberlandesgericht) reversed the ruling, holding that YouTube must prevent the distribution of the illicit content, including the 36 video clips identified by Peterson.

However, it said that the video-sharing platform is not liable for the infringement and denied Peterson’s request for compensation. The court added that YouTube is not required to monitor all content uploaded to its platform.

Peterson appealed against the ruling.

On Thursday, the Federal Court of Justice declined to rule on the matter. Germany’s highest court said that it would first seek clarity from the CJEU, in order to ensure the harmonisation of copyright rules across the EU.

In the referral, the Federal Court of Justice asked whether an internet platform operator that makes IP-violating content available is making a “communication to the public”, in circumstances where users publish the content on the platform without the operator’s consent.

In addition, the court asked the CJEU to clarify whether internet platform operators are obliged to pay damages for infringement in such circumstances.

The decision to refer copyright queries to the CJEU follows the European Parliament’s vote in favour of modernising copyright law last week, a move which is expected to have a major impact on the way that internet platform operators monitor and filter uploaded content.

YouTube’s chief business officer Robert Kyncl had criticised the proposed directive, claiming that its provisions may undermine the creative economy.

Kyncl said that article 13 of the now-passed directive requires internet platforms to filter user-generated uploaded content, which may discourage such platforms from hosting the content.

This story was  first published on TBO.

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