These are questions which both the Court of Justice of the European Union (CJEU) and national courts have addressed over the past few years (although not always answered clearly).
A few days ago the Tribunale di Roma (Rome Court of First Instance) issued an interesting [shocking or amazing, depending on one's own perspective] judgment in this area. It did so in the context of litigation between RTI - Reti Televisive Italiane (owned by broadcasting company Mediaset) and Break Media, a company operating video sharing platform break.com.
The action concerned the alleged liability of the latter for unauthorised streaming of the claimant's TV programs over break.com, a site in respect of which the defendant denied to exert any control or have any editorial responsibility.
First, the defendant argued that the Rome court lacked the competence to hear the action brought by RTI because Break's servers are located in the US and this is where the allegedly infringing works were uploaded.
The court rejected this argument and held that RTI is entitled to sue before the courts of the place of the harmful event. Relying on what is currently Article 7(2) of the Brussels I Regulation recast as interpreted by both Italian courts and the CJEU in Pinckney and Hejduk [Katposts here], the court held that such place is - among other things - where the damage occurs, ie the place where the allegedly infringing content can be accessed. This is also Italy, and so the Rome court had jurisdiction to hear RTI's action.
Break's obligations ... according to Break
The defendant claimed that - pursuant to Article 15 of the Ecommerce Directive as transposed into Italian law (Decreto Legislativo 70/2003) - it does not have any monitoring obligation, but only - pursuant to Article 14 of the Ecommerce Directive as transposed into Italian law - an obligation to remove contents upon receiving an appropriate notification of their allegedly infringing character.
According to Break the submission by RTI of generic cease-and-desist letters asking for the removal of "all TV programs" (without also indicating the relevant URLs) would not be appropriate.
The Rome court addressed the issue of Break's liability by determining at the outset whether it could be considered a hosting provider within the Ecommerce Directive. The court rejected this idea, holding that break.com is not "a simple platform", but rather "a modern global enterprise falling within the categories of so called 'aggregators' which organises in different ways and makes available to users a number of audiovisual works from different sources".
As such, the court concluded that Break is not a simple, passive, provider but rather an active content provider. It follows that Break cannot not enjoy the safe harbour protection granted by Article 14 of the Ecommerce Directive. According to the court, this conclusion would be in line with the principles arising from the CJEU decisions in Google France and L'Oréal.
... But no monitoring obligation arises
This said, the court noted that even by qualifying Break as a content provider, this does not mean that it would have a general and preventative monitoring obligation.
This is in line with the CJEU decision in Scarlet.
According to the court, opining otherwise would result in an "unacceptable restriction of freedom of information and expression and would prejudice the necessary balance that must subsist between copyright protection and freedom to conduct a business" within Article 16 of the Charter of Fundamental Rights of the European Union.
|Submitting a takedown request :|
now easier in Italy?
This said, according to the court the liability of Break arose the very day when it received RTI's cease-and-desist letters. According to the court [and contrary to a 2015 decision of the Court of Appeal of Milan], RTI did not have any obligation to indicate the URLs where the allegedly infringing works could be found.
This is so because of two reasons.
First, it would become too burdensome for rightholders to enforce their rights.
Secondly, EU directives and the CJEU state that no general monitoring obligation can be imposed on ISPs. However, according to the court neither has ever mentioned or considered the need for rightholders to provide specific and technical indications of relevant URLs when submitting their takedown requests.
This is so both because URLs are not contents but rather their "localisation" and liability arises when the ISP becomes effectively aware of the unlawful nature of the work in question: "Asking even to provide URLs thus means disapplying relevant EU copyright provisions and case law and reduce copyright protection, in contrast with EU directives".
Bearing in mind that under Italian law there is no such thing as a system of binding precedent (stare decisis), the potential impact of this decision is nonetheless huge. Just imagine what would happen if the CJEU confirmed the interpretation of EU law (and earlier case law) as provided by the Italian court: life would be easier for rightholders and possibly significantly harder for ISPs. It would be sufficient to say: "remove all clips of X program/film/song", without even saying where such allegedly infringing clips are to be found on the relevant platform. If not a general obligation to monitor, this closely resembles what rightholders have been advocating for a while, ie a notice-and-stay-down system.
[Originally published on The IPKat on 9 May 2016]