Can YouTube be primarily liable for users' infringements?

Who's responsible for making
this video available:
(a) the user-uploader
(b) YouTube
(c) both of them
(d) Merpel
(e) no one

Can YouTube be considered primarily responsible (and, therefore, potentially liable) for the making available of user-uploaded content through its platform? In other words: can YouTube be considered as directly making acts of communication to the public?

This is the crucial question Germany’s Federal Court of Justice (BGH) will need to address in a case (I ZR 140/15) that was heard last week. The decision is due on 13 September.

The case

As summarized by the BGH press office, the claimant in this case is a music producer who has sued Google/YouTube over the unauthorized making available, on the defendants’ platform, of videos containing musical works from the repertoire of soprano Sarah Brightman. The claimant had signed an exclusive contract with this singer in 2006, allowing him to exploit recordings of her performances.

In 2008 unauthorized videos featuring Brightman’s performances were made available on YouTube. Apparently, following a takedown request, a number of videos was removed from YouTube, but infringing material was made available once again shortly afterwards.

In 2010 the first instance court sided with the claimant in respect of three songs, and dismissed the action for the remaining claims. 

Both the producer and Google/YouTube appealed the decision and in 2015 the appellate court only partly sided with the producer. Most importantly, it rejected the idea that YouTube could be regarded as primarily liable for the making available of infringing content, although it found that liability would subsist under the typically German ‘Störerhaftung’ doctrine (a form of accessory liability) under §97(1) of the German Copyright Act.

The case is now pending before the BGH and the decision is keenly awaited. As far as I know (but please correct me if I am mistaken), a platform like YouTube has never been found primarily liable for the infringement of copyright or a related right by a German court, although in 2015 a court in Berlin held that Google was primarily liable for using product pictures on Google Shopping (GRUR-RR 2016, 265) [many thanks and Katpat to Kai Schmidt-Hern for the info]. However, the decision of the BGH – no matter in what sense - will be of great importance, also outside Germany, for two essential reasons.

First, it will be an opportunity to reflect upon and test the effect of the (rather expansive) case law of the Court of Justice of the European Union (CJEU) on the right of communication to the public within Article 3 of the InfoSoc Directive. It should be noted that the appellate court decided the case in 2015, ie before key judgments like GS Media [Katposts here], Filmspeler [Katposts here] and Ziggo (ie The Pirate Bay case) [Katposts here] were even issued.

Sarah Brightman

Secondly, it will serve to appreciate whether and to what extent the policy discourse around the so called ‘value gap’ proposal within Article 13 of the draft Directive on copyright in the Digital Single Market [Katposts here] would signal a departure from the existing legal framework.

CJEU case law on the right of communication to the public

So far the CJEU has decided nearly 20 cases on the right of communication to the public [see here for my map offering a ‘simplified’ version of the construction of this exclusive right], the latest instalment being last year’s decision in Ziggo (The Pirate Bay case). There the CJEU held that the operators of a platform that makes available to the public third-party uploaded copyright content and provides functions such as indexing, categorization, deletion and filtering of content may be liable for copyright infringement, jointly with users of the platform. For a finding of liability it is not required that the operators possess actual knowledge of the infringing character of the content uploaded by users.

The judgment, which I discuss more at length here, is rather short and leaves certain points ambiguous. Crucially, it is not entirely clear to what extent conclusions which are valid (and sensible) for a ‘rogue’ platform like The Pirate Bay can be extended to other platforms.

What seems however self-evident is that CJEU case law on Article 3 of the InfoSoc Directive has adopted a broad approach to the definition of what constitutes an ‘act of communication to the public’, stressing – among other things –the centrality of the notion of ‘indispensable intervention’ of the user/defendant. We now know, at least since GS Media, Filmspeler and Ziggo, that ‘indispensable intervention’ should be intended as an intervention aimed at facilitating access to content that would be otherwise more difficult to locate. 

Germany’s Federal Court of Justice

The policy discourse

In parallel with developments at the CJEU level, the policy discourse has unfolded in such a way that Article 13 of the proposed DSM Directive is rooted within the idea that operators of platforms – no matter how you wish to call them – that give access to user-uploaded copyright content make in fact acts of communication to the public, together with users of their services.

In the latest versions of the DSM Directive – both at the Council [this should be the latest compromise proposal of the Bulgarian presidency] and EU Parliament levels [here for MEP Voss's compromise proposal] – it is clarified that this idea would not be a departure from what the law already says, in that it is based on case law on Article 3 of the InfoSoc Directive. Hence, it would be just a consolidation and clarification of what the law already is.

Conclusion

As things currently stand, it seems that the BGH will decide this case without making a reference for a preliminary ruling to the CJEU. 

In any event, the resulting decision will add an additional piece to the (complex) construction of the right of communication/making available to the public. 

What has become central is no longer (or rather, not just) what constitutes an act of communication to the public, but rather who is responsible/liable for such act. 

The BGH decision might help refine further the terms of such fundamental debate.