Social network, media company, host provider, neutral intermediary… what’s in a name for YouTube?

Social network, media company, host provider, neutral intermediary… what’s in a name for YouTube?

Media companies who call themselves social networks will have to recognize that they, too, have to take on responsibility for the content with which they earn their millions.

-— Markus Breitenecker, CEO of Puls4

Who is to blame, if someone records TV programmes and illegally uploads them to YouTube: YouTube, or the individual? According to the Commercial Court of Vienna, YouTube is jointly responsible for copyright breaches from user-uploaded content. Is this einer Entscheidung, die das Internet revolutionieren könnte – a decision that could revolutionize the Internet?

To date, the unanimous opinion of European case law supports the position that YouTube is only a platform, an intermediary, a service provider, a neutral host, and so on – and therefore could not bear the responsibility for stolen content. That’s no longer true, says the Handelsgericht Wien (Vienna’s Commercial Court).

In its judgement of 6 June, the Court handed Austrian TV broadcaster Puls4 a key victory in its four-year legal battle with Google-owned YouTube. In 2014, Puls4 had sued YouTube for allowing Puls4’s stolen content to appear on the YouTube platform. YouTube responded by asserting the Host Provider Privilege set out in Article 14 of the E-Commerce Directive 2000/31/EC, which in certain situations shields host providers from being held responsible for the actions of its users.

The Americans have a similar provision in the Online Copyright Infringement Liability Limitation Act (OCILLA), which forms part of the Digital Millennium Copyright Act. The OCILLA creates a conditional “safe harbor” for online service providers by shielding them for their own acts of direct copyright infringement, as well as from potential secondary liability for the infringing acts of others. In exempting internet actors from copyright infringement liability in certain scenarios,  both Article 14 and the Safe Harbor rule aim to balance the competing interests of the copyright holders, and those who use the content online.

Where YouTube is simply a host provider, it is the individual who uploaded the video in the first instance who is to blame for the theft of copyrighted material. This time, the Court disagreed with YouTube’s argument, and has found finding the media giant to be jointly responsible for the copyright infringement.

So, why should we care about the Puls4 case? Although Austrian case law is not binding for other European Union member states, the Commercial Court’s judgment sets a precedent for denying Host Provider Privilege to YouTube. This may encourage similar decisions in the future which are based on the same line of argument.

Speaking to German newspaper Der Standard, Puls4’s CEO Markus Breitenecker explained that YouTube had effectively abandoned its neutral intermediary position and assumed an active role, which provided it with a knowledge of or control over certain data. In European legislative parlance, this is known as being a false hosting provider or false intermediary.

For years, many of us have assumed that YouTube is just a inanimate platform to which users upload videos. This case underscores that YouTube can no longer “play the role of a neutral intermediary” because of its “links, mechanisms for sorting and filtering, in particular the generation of lists of particular categories, its analysis of users’ browsing habits and its tailor-made suggestions of content.”

Puls4 and YouTube have until early July to petition the court, before it issues its binding ruling. In a statement to The Local Austria, YouTube said it was studying the ruling and “holding all our options open, including appealing” the decision.  In the meanwhile however, YouTube noted that it takes protecting copyrighted work very seriously.

If the preliminary decision is upheld, YouTube must perform a content check upon upload, instead of simply removing copyright infringing content upon notification. In respect of this, the Viennese court stated that “YouTube must in future — through advance controls — ensure that no content that infringes copyright is uploaded.” It is therefore rather timely that YouTube began beta testing a feature called Copyright Match last month, a tool which allows users to scan the platform to locate full re-uploads of their original videos on other users’ YouTube channels.

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some Puls4 content is still available on YouTube (at least, here in the UK).

The European Parliament seems to think the arguments about false hosting providers is best left to the courts to decide. Despite the E-Commerce Directive being more than 15 years old, there is no pressing need for a reform. In a recent report on the matter,  the European Parliament’s Committee on the Internal Market and Consumer Protection stated that while false hosting providers may not have been envisaged at the time of the adoption of the E-Commerce Directive in 2000, “the delineation between passive service providers caught by Article 14 and active role providers remains an issue for the court.”

 

 

Fair Play to use FIFA trade marks on social media?

Fair Play to use FIFA trade marks on social media?

This weekend, together with millions of others around the world, I watched Iceland make its World Cup debut against Argentina. Iceland, the smallest nation to ever qualify for the World Cup, is a special country for me, not least because my husband and were married there! Especially as my home country failed to qualify for this year’s tournament (sigh) it comes as no surprise that I’m supporting the Iceland’s national football team, or Íslenska karlalandsliðið í knattspyrnu.

I recently came across an article which said fans should beware of using World Cup logos in social media profile pictures. The article explained that although “many fans will be using social media to show their support by uploading images of their country’s flags and the World Cup logo as their profile pictures, by uploading the World Cup logo in your pictures you could be infringing intellectual property rights owned by the Fédération Internationale de Football Association (FIFA).”

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So, what’s the deal? Does my newly updated Facebook photo, which features FIFA’s official emblem, unlawfully infringe upon FIFA’s trade mark? The answer is below…

Intellectual Property is football’s star player.
The World Cup is the largest single sporting event on Earth, with nearly half the world’s population tuning in. The tournament, which runs from June 14 to July 15 is being hosted in Russia for the first time, at an official cost of 683 billion rubles or £8.4 billion (Reuters).

As reported on its finances page, around 95% of FIFA’s revenues come from the sale of television broadcasting, marketing, and licensing rights related to the FIFA World Cup. In exchange for funding, FIFA grants exclusive rights to use its official marks to certain companies, which this year include addidas, Coca Cola, Gazprom, Budweiser, and Visa (rights holders).

In its 30-plus pages of official guidance on brand protection, FIFA claims that if anyone could use the official marks for free, the power of the marks would dilute and there would be no reason for companies to pay for sponsorship. Without lucrative corporate partnerships FIFA would lack the revenue required to organise the World Cup.

From the 2014 World Cup in Brazil, FIFA hauled in $4.8 billion in revenue, which turned a $2.6 billion profit for the association (which is then re-invested into development projects). Broadcast revenue topped $2.43 billion, while sponsorship fees brought in $1.6 billion and ticket sales earned $527 million. In other words, it’s not ticket sales that pay the bills: it’s intellectual property.

To date, FIFA’s intellectual property portfolio contains 14,000 trade mark registrations, about 300 registered designs, and 150 copyright registrations covering 157 jurisdictions overall (Official marks). Official marks include the flag, logo, hymn, and motto of FIFA, mascots, emblems, posters, and identification symbols.

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the official emblem and the official mascot, which is a Eurasian wolf named Zabivaka. According to the FIFA website, Zabivaka – which means “goal scorer” in Russian – “radiates fun, charm and confidence.”

The words “FIFA”, “2018 FIFA World Cup”, “World Cup Russia”, “FIFA World Cup”, “Football World Cup”, and “Soccer World Cup” are also protected, as are “Russia 2018” and “Moscow 2018.” Simply writing “Russia 2018” on a t-shirt could land you in trouble, as doing so may lead consumers to establish an unlawful association with FIFA’s tournament.

Trade marks as broad as these are generally not enforceable. One wonders if these trade marks would have been approved in the first place, were it not for the massive size and power of FIFA. However, it’s also important to note that, without the co-operation of local officials, FIFA lacks both adequate legitimacy and capability to effectively police and protect their official marks.

Russian law.
Domestic law provides FIFA with the additional teeth needed to enforce its intellectual property rights. In March of 2013, Russia passed the Federal Law No 108-FZ On preparation for and the staging of the 2018 FIFA World Cup (“World Cup Law”). There are provisions aimed at protecting FIFA’s commercial rights, including a specific procedure for the registration of FIFA’s trademarks. Under Article 19, pre-existing Russian trademarks that are identical or similar to FIFA’s are prohibited for use until 2019.

Compliance is supervised by the Russian Federal Service for Surveillance of Consumer Rights Protection and Human Wellbeing (Rospotrebnadzor) and the Federal Service for Supervision of Communications, Information Technology and Mass Media (Roskomnadzor).

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FIFA poster in front of the Kremlin, Moscow

On November 2017, Rospotrebnadzor adopted an agenda to prepare for the World Cup, including the key priority of supervising the use of FIFA’s official marks. In March, the Roskomnadzor announced that it had placed 858 websites selling counterfeit products on the so-called “Russian Internet Blacklist“, the Unified Register of Prohibited Information.

Additionally, the Federal Antimonopoly Service (FAS) can also hold parties accountable for illegal use of official marks. By way of example, Bavaria Brewing House Group Ltd and Agrofirma FAT Ltd raffled tickets for the World Cup final on their website and on social media. They also used FIFA trade marks in their promotional campaign and to mark their “Bavaria” beer. As neither Bavaria Brewing House nor Agrofirma FAT were licensed rights holders, the FAS issued an injunction against the companies to stop the violations.

What this means for fans.
FIFA engages in active surveillance and brand protection, which includes court proceedings to halt an infringing situation and seek financial compensation for any damages suffered.

It’s important to note that sports bars, restaurants, clothing brands and other companies are welcome to use generic football or country related images, provided they do not include any of FIFA’s official marks. The key here is avoiding reference to the World Cup that could suggest your company has an official relationship with FIFA.

But should individuals be worried about changing their profile pics on Facebook, if those photos include official marks? Not really. This is because sharing official content belonging to FIFA by fans without any commercial benefit is expressly permitted. This includes sharing on Facebook, Twitter, or even here on KelseyFarish.com, as blogs without commercial content are likewise exempted. Provided that you don’t attempt to make money by unlawfully using FIFA’s official marks, go on and enjoy the beautiful game!