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Copyright wounds to be reopened in EU top court

The copyright fight between rightholders and Google is back ..

The copyright fight between rightholders and Google is back — only this time, the action is in Luxembourg.

On Tuesday, the Court of Justice of the European Union will hear arguments on whether Googles YouTube should be held legally responsible for copyright infringement on its platform.

At stake is whether movie studios, broadcasters and record labels, among other rights holders, can seek compensation from video-sharing platforms when their content is uploaded by users without their consent. Another question is whether they can require platforms to make sure copyright-protected material is not re-uploaded and how they need to cooperate with hosting providers.

“The judgment of the CJEU will have far-reaching consequences for the interpretation of the existing legal framework, including on the copyright in the Digital Single Market directive which had not been adopted” when the case was brought to Luxembourg, according to an analysis of Wiggin, a U.K. law firm focused on media, technology and intellectual property.

The case was brought to Luxembourg before EU institutions adopted a controversial copyright reform earlier this year, which states YouTube can be, under certain conditions, responsible for copyright infringement.

German judges first said YouTube could be held liable for copyright-infringement, but an appeal court said the platform could not.

Tuesdays hearing also comes amid an ongoing conversation on both sides of the Atlantic on the legal responsibility of companies such as Google and Facebook with regard to all types of hosted illegal content, such as hate speech and terrorist propaganda.

Governments and lawmakers across Europe are wondering if powerful social media platforms can still benefit from so-called safe harbor provisions in the e-commerce directive, a 2000 legal framework that states hosting providers are not liable for the illegal content posted by users, but must remove them once flagged.

The Digital Services Act, an upcoming legislation from the incoming European Commission, is set to clarify the rules.

“This copyright court case is part of a bigger debate in the EU on platforms liability. There is a new paradigm, were moving from the liability exemption of the e-commerce directive to the liability presumption of the copyright directive,” said Joan Barata, an expert on platform regulation at Stanford Law Schools Center for Internet and Society.

Vimeo has been ordered to pay Italian broadcaster Mediaset over copyright infringement | Martin Bureau/AFP via Getty Images

Barata also mentioned a draft legislation on terrorism propaganda online that requires platforms to remove flagged material within one hour and added this “new paradigm” could have a negative impact on freedom of expression.

Conflicting national rulings

The decade-old case to be heard Tuesday pits Googles YouTube against a record producer who sought damages from the platform because recordings he said he owned were re-uploaded online without his consent.

German courts gave conflicting rulings on the matter: Judges first said YouTube could be held liable for copyright-infringement, but an appeal court said the platform could not.

The countrys Federal Court of Justice then decided to refer the matter to Luxembourg.

EU judges will have to determine whether YouTube communicates to the public and whether it is a “passive” platform — a mere hosting provider that can benefit from the e-commerces limited liability regime — or an “active” one.

Other national courts in Europe have been asked to decide on the status of platforms, going beyond YouTube.

“The copyright reform debate has shown this topic is anything but controversy-free. The outcome of this referral will orientate national political debates, in one way or another” — Eleonora Rosati, associate professor the Stockholm University

Austrias Supreme Court also referred a similar case to the EU top court after Austrian judges gave conflicting rulings on the legal responsibility of the Google-owned platform for copyright infringement.

In Italy, broadcaster Mediaset had some court wins against other user-generated content platforms. In July, video-sharing platform Vimeo was ordered by the Court of Rome to pay €5 million to the Italian media company for copyright infringement. Judges argued Vimeo could not benefit from the e-commerce directives safe harbor.

“Our hope is that the CJEU will rule YouTube is liable, because many judgments have clearly clarified that. We also now have the EU copyright reforms Article 17, that explicitly states that video-sharing platforms, under certain conditions, do communicate to the public,” said Alessandro La Rosa, Mediasets legal counselor.

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