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Hamburg Higher Regional Court confirms: YouTube is liable for copyright infringements

This week, on July 1, 2015, Hamburg Higher Regional Court today ruled that YouTube is liable as an ‘interferer’ (Störer) for content made available on its platform by third parties. The fundamental responsibility of YouTube via the principle of ‘interferer liability’ (Störerhaftung) was therefore confirmed by the appeal court. If YouTube receives notice of copyright infringements, the Google subsidiary must take appropriate measures to ensure that these copyright protected works on its platform are no longer accessible in Germany. In another case, Munich I Regional Court rejected an action for damages by GEMA. According to these rulings, within the present legal framework YouTube is currently not financially accountable for the use of copyright protected works on its platform.


Hamburg Higher Regional Court endorsed the opinion of the lower court, Hamburg Regional Court, and confirmed YouTube’s interferer liability. “The Higher Regional Court’s ruling shows that YouTube cannot evade responsibility for copyright infringements and cannot shift responsibility for monitoring infringements of rights on to the copyright holders”, said GEMA’s CEO Dr. Harald Heker. The ruling is an important signal for the approx. 70,000 members of GEMA, on whose behalf the collective management organisation is fighting for adequate remuneration. The Higher Regional Court’s decision is not yet final.

The concept of interferer liability is to be understood as liability for infringements of rights arising from acts of contribution with causative effect and violations of control and monitoring obligations. The responsibility of the Google subsidiary via the principle of interferer liability was already established back in April 2012 by Hamburg Regional Court. The Higher Regional Court has confirmed the decision of the lower court and stated in its oral presentation of the judgment that as an interferer, YouTube must comply with far-reaching control obligations in relation to notified infringements of rights. In particular the Content ID process and the use of word filters are considered by the Higher Regional Court to be appropriate verification duties. However, it is not sufficient for YouTube to simply refer the rights holders to its Content ID program. Instead YouTube apply this system itself.

It follows from the two judgments that although YouTube is responsible for preventing infringements of rights, this does not, however, result in a duty to pay reasonable compensation to the copyright holders. “The Higher Regional court judges correctly indicated in the oral presentation of the judgment that in the area of music videos in particular, YouTube has moved structurally further and further away from being a mere host provider”, said GEMA’s General Counsel Dr. Tobias Holzmüller. “Unfortunately, due to the present legal framework, the Higher Regional Court, and Munich Regional Court too, could not see their way to recognizing liability on the part of YouTube as the perpetrator of the infringing acts itself (Täterhaftung), with a resulting liability to pay damages.”

The background to the dispute is the claim by GEMA that authors of musical works should be paid an adequate compensation for the use of their copyright protected material on the YouTube platform. In the last years, YouTube has paid GEMA no royalties at all for using music on its online video platform, although it generates enormous advertising income from the music. For GEMA, responsibility clearly lies with YouTube: “Confirmation of interferer liability by the appeal court once again underlines the fact that online services have a responsibility when they rely on business models without proper licensing of the necessary rights”, declared Thomas Theune, GEMA’s Director of Broadcasting and Online. “However, as YouTube earns substantial revenue through the commercial exploitation of music works, it is our goal to finally get YouTube to pay adequate compensation for the use of our members’ works, in the same way as other music services on the market do. This is the only way of ensuring that in the digital age, creative people are able to make a living from their creative activities.”

Further information, including background information on the controversy between GEMA and YouTube.

GEMA represents the copyrights of more than 70,000 members (composers, lyricists, and music publishers) in Germany, as well as over two million copyright holders all over the world. It is one of the largest societies for authors of works of music worldwide.

 

Press contact:
Ursula Goebel, Head of Marketing & Communication
E-mail: ugoebel@gema.de; Tel.: +49 (0)89 48003-426

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