Poland attacks the new EU Copyright Directive before the EU Court

notebook-614213_960_720.jpgPoland initiated a legal proceeding against the new EU Copyright Directive and in particular against the texts that require automatic filtering of content. According to the complaint:

The Republic of Poland seeks the annulment of Article 17(4)(b) and Article 17(4)(c), in fine (i.e. the part containing the following wording: ‘and made best efforts to prevent their future uploads in accordance with point (b)’) of Directive (EU) 2019/790 of the European Parliament and of the Council of 17 April 2019 on copyright and related rights in the Digital Single Market and amending Directives 96/9/EC and 2001/29/EC (OJ EU L 130 of 17.5.2019, p. 92) and an order that the European Parliament and the Council of the European Union are to pay the costs.

In the alternative, should the Court find that the contested provisions cannot be deleted from Article 17 of Directive (EU) 2019/790 without substantively changing the rules contained in the remaining provisions of that article, the Republic of Poland claims that the Court should annul Article 17 of Directive (EU) 2019/790 in its entirety.

The Republic of Poland raises against that the contested provisions of Directive 2019/790 a plea alleging infringement of the right to freedom of expression and information guaranteed by Article 11 of the Charter of Fundamental Rights of the European Union.

The Republic of Poland claims specifically that the imposition on online content-sharing service providers of the obligation to make best efforts to ensure the unavailability of specific works and other subject matter for which the rightholders have provided the service providers with the relevant and necessary information (point (b) of Article 17(4) of Directive 2019/790) and the imposition on online content-sharing service providers of the obligation to make best efforts to prevent the future uploads of protected works or other subject-matter for which the rightsholders have lodged a sufficiently substantiated notice (point (c), in fine, of Article 17(4) of Directive 2019/790) make it necessary for the service providers — in order to avoid liability — to carry out prior automatic verification (filtering) of content uploaded online by users, and therefore make it necessary to introduce preventive control mechanisms. Such mechanisms undermine the essence of the right to freedom of expression and information and do not comply with the requirement that limitations imposed on that right be proportional and necessary.

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YouTube announced a new order for claiming copyright infringement

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YouTube announced some changes in its copyright protection policy. From now on every copyright owner or author who considers that there is an infringement of their rights will have to provide timestamps in order to indicate where in the relevant content such infringements exist.

Until now there were no requirements in that regard.

The reason for this change is the fact that sometimes YouTube creators are confused to identify the relevant copyrighted content within their videos that they allegedly infringe.

Apart from this, YouTube will provide its creators with more editing options for the removal of such infringing content.

Source: WIPR.

Breaking news – Youtube is liable for copyright infringement in Austria

organic-1280537_960_720.jpgThe Commercial Court of Vienna has issued a decision according to which YouTube is liable for copyright infringement of works uploaded by its users in Austria.

The case concerns allegations by the Austrian broadcaster Puls4 that its content was been uploaded without permission on Youtube.

The defensive position of Youtube was that the company operates in compliance with the requirement of the E-Commerce Directive according to which:

Article 14: Where an information society service is provided that consists of the storage of information provided by a recipient of the service, Member States shall ensure that the service provider is not liable for the information stored at the request of a recipient of the service, on condition that:

(a) the provider does not have actual knowledge of illegal activity or information and, as regards claims for damages, is not aware of facts or circumstances from which the illegal activity or information is apparent; or

(b) the provider, upon obtaining such knowledge or awareness, acts expeditiously to remove or to disable access to the information.

This option is possible only in the case of a “host provider”. The Vienna Court, however, based its decision on the European Court’s practice, which determines that there is no “host provider” when:

“. . . the service provider, instead of confining itself to providing that service neutrally by a merely technical and automatic processing of the data provided by its customers, plays an active role of such a kind as to give it knowledge of, or control over, those data.” (ECJ in L’Oreal ./.eBay)

The Court concluded that Youtube is not only a service provider but manage the uploaded data, promote it, measure the user’s activity etc. So in light of this, the company is not a neutral mediator.

It’s highly likely that this decision will be appealed but nevertheless, it shows the current more restrictive approach among different European courts toward the internet providers.

Source: Morrison & Foerster LLP – John F. Delaney, Christiane Stuetzle and Christoph Wagner, for Lexology.

Image: freephotocc, Pyxaby.