The long-running debate over YouTube and ‘safe harbours’ for internet platforms that let users upload content isn’t going to be settled any time soon. However, a new ruling from the European Union’s Court of Justice is a significant moment in defining how the responsibilities of these companies – as they relate to copyright infringement – may evolve.
Feast your eyes on the ruling here, which relates to one case originally brought against YouTube in Germany by music producer Frank Peterson, and another brought against online storage firm Cyando, also in Germany, by publishing (not in a music sense) company Elsevier.
“As currently stands, operators of online platforms do not, in principle, themselves make a communication to the public of copyright-protected content illegally posted online by users of those platforms,” is the key summary. “However, those operators do make such a communication in breach of copyright where they contribute, beyond merely making those platforms available, to giving access to such content to the public.”
In other words, simply hosting infringing content posted by users does not make YouTube or similar platforms liable, but there’s a long section clarifying the ‘contribute, beyond merely making those platforms available’ aspect.
That includes “specific knowledge that protected content is available illegally on its platform” but not “expeditiously deleting it or blocking access to it” (i.e. a prompt takedowns policy) and also not “putting in place the appropriate technological measures that can be expected from a reasonably diligent operator in its situation in order to counter credibly and effectively copyright infringements on that platform”.
Cue YouTube reminding everyone (in its response to the ruling, published by Reuters) about its investment in Content ID. Note, the use of such ‘technological measures’ is one of the key planks in the new European Copyright Directive which is currently being implemented by the EU’s member states.
The court ruling is separate to that process, and offers guidance to domestic courts in those countries dealing with copyright infringement cases involving UGC platforms. But given the creative sector’s continuing concerns around the directive’s implementation, it’s safe to say they won’t be that chuffed with yesterday’s ruling.
Photo by Christian Wiediger on Unsplash
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