GEMA v YouTube (Hanseatic Court): YouTube ordered to prevent copyright breaches of its users

28 June 2012

Dr Fabian Niemann

The Regional Court of Hamburg held that YouTube is not directly liable for copyright infringements of its users, but responsible for bringing copyright infringements committed by its users to an end and to prevent such infringements once reported.

The decision by the Regional Court of Hamburg is not yet legally binding and both sides are expected to appeal to the Higher Regional Court of Hamburg. On May 21 an appeal was submitted, but it is not yet publicly known by which party.

Facts

YouTube offers a video-sharing site on which registered users, media and other corporations as well as individuals, can upload and make publicly available an unlimited number of audio-visual material. It is ranked as third most visited website worldwide and about 60 hours of new videos are uploaded to the site every minute.

Unlike collecting societies in other European countries the German collecting society GEMA currently has no licensing agreement with YouTube in place. As a consequence many music videos by international artists cannot be viewed in Germany and the user's access is restricted with the message: 'Unfortunately this [...] music-content is not available in Germany because GEMA has not granted the respective music publishing rights'.

In 2007 GEMA and YouTube concluded an interim licensing agreement, which expired on 31 March 2009 and has not been renewed. Since then, GEMA and YouTube have been unsuccessfully negotiating on a new licensing agreement.Whereas YouTube offered a lump-sum deal, which would enable GEMA to benefit from advertising revenues generated by YouTube, GEMA demanded a billing based on the actual usage claiming 0.02 up to 0.12 cents per view3. However, YouTube did not agree to these terms to get access to the German market, rejecting the agreement as 'a money-losing model'.

In May 2010, GEMA broke off negotiations and took legal actions against YouTube declaring that it 'want[s] to make clear that YouTube could be held completely accountable for the illegal use and theoretically could be forced to remove the contents and/or block access to the contents'. The testcase launched in front of the Hanseatic Court, which is known for its author friendly jurisdiction, is based on twelve separate music clips including Boney M.'s Rivers of Babylon. It is undisputed that the videos were made publicly available on the platform.


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 Fabian Niemann
Partner
Bird & Bird LLP
fabian.niemann@twobirds.com


This article was originally published in the June issue of E-Commerce Law Reports

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