Must YouTube eliminate infringements of rights?

Must the video portal YouTube eliminate copyright infringements on its internet portal upon becoming aware of them and take appropriate measures to prevent further equivalent infringements?

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The collecting society GEMA sued the internet portal YouTube for failure to cease multiple copyright infringements, which the video portal did not remove from the internet despite being aware of them.

The subject matter of the copyright proceedings against YouTube were various music videos that had been unlawfully uploaded by YouTube users and thus made accessible to the public. Thereupon, GEMA sued YouTube, inter alia, for an injunction.

YouTube refused to issue an undertaking to cease and desist, as it had not itself uploaded the music videos and therefore could not be a tortfeasor. YouTube merely provided its users with the video platform on the internet and had taken all reasonable measures to prevent copyright infringements by third parties. YouTube therefore did not incur liability as a secondary tortfeasor for any copyright infringements.

Decision of the Court

The Higher Regional Court of Hamburg (OLG Hamburg) ruled in favour of GEMA by judgment of 01.07.2015 – Az. 5 U 87/12 – and held YouTube liable as a secondary tortfeasor, as the video portal had not immediately removed the copyright infringements upon becoming aware of them.

If a service provider on the internet is notified of a clear infringement of rights, it must not only immediately block the specific offering, but also take precautions to prevent, as far as possible, further such infringements of protective rights. The extent of these duties to examine shall depend on what could reasonably be expected of YouTube in the individual case.

Conclusion

The operators of search engines and internet portals such as YouTube are initially not obliged to monitor the information transmitted and stored by them. As soon as a service provider is notified of a clear infringement of rights, it must immediately block the specific offering. Furthermore, the operator must take appropriate measures to prevent further equivalent infringements.