Is there anybody who can say that they have never watched a video on Google’s YouTube website? I am sure that many of you have, much like most people having an internet connection all over the world. Just think of Susan Boyle’s now infamous audition which racked up 120 million hits on YouTube alone.

This, however, is no cause for joy for owners of copyrighted material – such as films, TV series, sporting events and documentaries – who have come out in full force to object to their material being uploaded without their authorisation on the popular video sharing site.

Under copyright law, they are, as the owners of the copyright in the film or footage, the only people who may copy, distribute, upload or otherwise share the material. Any other such action is a breach of their rights in copyright.

What must be kept in mind is that the commercial exploitation of their copyright in the film or television programme is their means of income, their means of capitalising on the production – for example by selling the rights to various TV stations to air their TV series.

As copyright owners they are therefore unhappy to see their content uploaded to video sharing sites such as YouTube and viewed for free by millions all over the world.

This led companies such as Viacom and the Premier League to sue Google for $1 billion in damages because YouTube was deemed not to be acting sufficiently in taking down content which had been uploaded by third party users without the copyright owner’s consent.

In fact, Viacom argued that there had been over 1.5 billion views of 160,000 Viacom-owned clips.

However, US laws, the Safe Harbour provisions in the Digital Millennium Copyright Act, create exemptions for service providers, such as YouTube, from liability for acts done by third party users of their services.

Furthermore, US case law states that the burden of proof in identifying copyright infringement rests on the copyright owner, not the service pro-vider.

According to Southern District Court of New York, this is the case here – YouTube had acted within the Safe Harbour provisions. The judge therefore threw out Viacom’s case.

What did the “Safe Harbour” entail? YouTube were held to have no control over what users upload, they simply offer the video uploading service. When copyright owners are aware that their material is illegally uploaded onto YouTube, they have the right to inform YouTube that they are the owners of that content and can ask that the content is removed for infringement purposes.

YouTube should then comply as expeditiously as possible in taking down the content. When certain users are found to upload solely copyrighted material, YouTube also issue warnings, and in extreme cases discontinue user accounts.

This practice, as set down by law, is something YouTube complied with, and therefore the District Court found that YouTube was acting within its rights.

YouTube and Google were obviously delighted with the victory.

Via their official blog they reported that they “look forward to renewing our focus on supporting the incredible variety of ideas and expression that billions of people post and watch on YouTube every day around the world”.

The “Safe Harbour” provisions are not a US-only creation. The European Union’s eCommerce Directive contains similar clauses which work in favour of service providers. Malta’s own Electronic Commerce Act, apart from dealing with electronic contracts and electronic communication also caters for intermediary service providers who carry out mere conduit, caching and hosting. YouTube could be categorised as a “host”, and similarly to the US, hosts are duty bound to remove infringing content when alerted by the copyright owner, but are otherwise not liable for the uploading of the content itself.

However, all is not over yet, since Viacom are reportedly set to appeal the judgement.

www.fenechlaw.com

Dr Rizzo specialises in intellectual property law at Fenech & Fenech Advocates.

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