Friday, 31 August 2012

Different levels of protection

Google should not have a duty to proactively remove copyright infringing material from You Tube once it has been re-posted, a French court has ruled. 

Such an obligation would breach European Union legislation, since it would be ‘disproportionate to the aim pursued’ for Google – the owner of You Tube –  to prevent copyright infringing videos from being re-posted. In those cases that Google has not been notified of any suspected illegal material and the location where it has been re-posted, the French Court of Cassation ruled it would not be compatible with EU law to impose ‘a general obligation [on Google] to monitor the images they store and search for updates online’.

The French ruling was welcomed by service providers and search engines. Especially since a district court in Hamburg, Germany, ruled earlier this year that Google should ‘proactively flag up infringing material by using existing technology’ and inform rights holders when material - that had earlier been classified as unlawful - popped up again. The German Judge said YouTube should actively use ‘Content ID’, a system that is able to identify copyrighted music and film content the video giant has been using in order to prevent the spread of illegal copies. Back then, in April, the German court said YouTube should not solely rely on rights holders using the system and proactively use it as well. 

The latest court ruling in France does follow last year’s decision by the European Court of Justice, that ruled that national courts have no powers to oblige internet service providers to use filter systems, such as ‘Content ID’. Such an obligation would breach ISPs’ ‘rights to freely conduct business and individuals’ rights to privacy, free speech and the protection of their personal data’, the ECJ decided. In its ruling, the ECJ merely followed the E-Commerce Directive, which states that service providers cannot be made liable for copyright infringing material that they have not created and a duty to monitor online content should not exist.

The latest ruling, in France, should be seen as another step in the further classification of anti-piracy rules and policies in the European Union. Although the E-Commerce Directive states clearly that a national court cannot impose a general obligation to monitor online content on a service provider, an obligation to examine an individual case is possible and permissible under the E-Commerce Directive, allowing national courts to order service providers to monitor in ‘a specific case’. 

Does this mean right holders can still go to court and force a provider of online content to remove copyright infringing material, despite the French and ECJ rulings? It seems so. But only after the rights holders have approached the provider and pointed out which material they believe is illegal. Although the French judge followed the European judges, the German court ruling has set a precedent for Europe’s largest internet market. Therefore, it may be clear that the EU still has a long way to go before clarity on this matter can be given. After all, if right holders turn to a German court it is likely Google will be ordered around, while in France this is not the case.

Many experts believe it is now up to the European Commission to further tighten the rules and clearly specify what a ‘specific case’ is. Also, it needs to set out if there is any liability for re-posted material, as the French court said there was not. Too many questions remain unanswered, which means  right holders throughout Europe continue to suffer a different level of protection from service providers.

Michiel Willems © 2012 CP Publishing Ltd. Picture: