German court imposes new copyright responsibilities on YouTube

Out-Law News | 24 Apr 2012 | 12:31 pm | 2 min. read

A German court has ordered YouTube to pro-actively flag up infringing content to rights holders using existing technology it operates if it has previously been notified that an unlawful copy of the content has been uploaded to the site by users.

A district court in Hamburg has provisionally ruled that whilst YouTube was not directly responsible for copyright infringement by users, it did contribute to seven instances of infringement by providing a platform for users to infringe and by not removing unlawful content speedily enough when notified.

The court ordered YouTube to pro-actively use its 'Content ID' system that it currently operates in order to prevent the spread of copies of content that it knows infringes on copyright rather than rely purely on rights holders using the system. It also ordered the video-sharing company to install a filter system in order to check whether videos newly uploaded by users infringe on copyright holders' rights. The ruling is likely to be appealed.

YouTube's Content ID technology identifies content that music publishers own rights to. Rights holders provide YouTube with copies of the works they want YouTube to reference on the video-sharing site and the technology compares uploaded files with the content provided by rights holders. When a match is identified rights holders can choose whether to block the use of the content, track its use by leaving it up or elect to take a share of the ad revenues generated around the video's use.

German Society for Musical Performing and Mechanical Reproduction Rights (GEMA) had argued that YouTube was liable for infringing 12 works belonging to artists it represents. YouTube had argued that it was not liable for any copyright infringement by users but the Hamburg court ruled that the company had failed to act quickly enough to remove seven of the works when it had been notified of the existence of the illegal material. The case relating to the other five works was dismissed.

The court said the "word filter" would search for the titles of videos and the titles of artists and "filter out" videos that contain music recordings that have been uploaded by users without the consent of GEMA, which collects royalties on behalf of the rights holders, according to an automated translation from a statement issued by the Hamburg district court.

The filter system was necessary in order to work in tandem with the Content ID technology, the court said. This is because "different recordings (eg, live performance rather than studio recording) do not recognize the software," it said.

YouTube has suggested that it wants to negotiate with GEMA over royalties.

"Today's ruling confirms that YouTube as a hosting platform cannot be obliged to control the content of all videos uploaded to the site," said a spokesperson for YouTube, according to a report by the BBC. "We remain committed to finding a solution to the music licensing issue in Germany that will benefit artists, composers, authors, publishers and record labels, as well as the wider YouTube community."

EU laws generally absolve service providers from liability for unlawful activity that takes place on their service, subject to certain conditions.

The E-Commerce Directive protects service providers from liability for material that they neither create nor monitor but simply store or pass on to users of their service. The Directive says that service providers are generally not responsible for the activity of customers and that member states must not put service providers under any obligation to police illegal activity on its service.

Service providers are not liable for infringement via their services if they do not have "actual knowledge" of the illegal activity or having obtained such knowledge "acts expeditiously to remove or to disable access to the information". The Directive is implemented in the UK by the E-Commerce Regulations.