Le barzellette

There is a Frenchman, a Spaniard, an Italian and YouTube.

[:en]Can YouTube broadcast clips from a television channel on its platform? And if so, what role does it play from a civil law point of view? These certainly highly relevant and important questions were answered by the Tribunal de grande instance of Paris.

French judges have come to decide on a dispute brought by the television company TF1, which was claiming damages of €150 million from YouTube for violation of the Intellectual Property Code. In particular, of Article 216-1, which makes the diffusion and retransmission of an intellectual work subject to the authorisation of the rights holder, and of Article 1382 of the Civil Code (corresponding to our Article 2043 of the Civil Code governing non-contractual liability).

The transalpine judges decided to reject all of TF1's claims and ordered TF1 to pay EUR 80,000 in legal fees.

The ruling is interesting in that it states that "the economic model developed by the YouTube company in its as a hosting provider is neither prohibitednor unlawful and no diversion of customers"can be imputed to it. According to the French judges, in fact, YouTube and television constitute two different types of business.

Clarity is also provided on the of YouTube, which would remain mere hosting not being in any way assimilated with publishing.

The plaintiffs on this point had observed that YouTube performs activities beyond those typical of thehosting. For example, YouTube implements a prior check aimed at blocking and censoring certain content that YouTube "considers contrary to its editorial line"Google also automatically acquires the copyrights necessary to exploit the content posted by users. Despite these observations, the Court stated that these circumstances, would not be suitable and sufficient to qualify the web giant as a 'publisher'.

Finally, the judgment retraces what has already been affirmed by the Spanish case law of the Juzgado de lo Mercantil in Madrid, 20 September 2010which disclaimed any responsibility on the part of YouTube for the content posted by users (see also "The hosting contract and the hosting provider's liability profiles e  Responsibility of the search engine in the case of 'caching' (if you can)).

On this point he also added that the use of the advertisement on some of the published videos would not be sufficient in itself to lead to the loss of status intermediary.

Internet operators are therefore mere intermediaries and, as such, cannot be held responsible for the content conveyed by third parties, let alone be equated with publishers.
Ultimately, it is felt that the european case law is finally moving towards a difficult framing of the duties and responsibilities of search engines and hosts.

 

 

 

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by admin