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Austrian court says YouTube shouldn’t have safe harbour protection

By | Published on Friday 8 June 2018

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As the safe harbour reforming article thirteen of the European Copyright Directive continues to work its way slowly through the law-making process, a provisional court ruling in Austria has backed up the music industry’s long stated argument that services like YouTube shouldn’t have safe harbour protection to start with.

YouTube, of course, claims protection under the so called copyright safe harbour, which says that it can’t be held liable for copyright infringing content uploaded by its users, providing it provides a system via which rights owners can have the infringing videos removed, which it does.

The music and wider entertainment industry is trying to have European copyright law reformed to increase the liabilities of user-upload sites like YouTube which claim safe harbour protection.

One argument that has been put forward in Brussels is that safe harbour protection was only ever intended for online ‘intermediaries’ that provide servers and networks over which content is distributed. But, the music industry’s argument goes, YouTube does a lot more than that, and therefore shouldn’t be considered a safe harbour eligible service.

That was pretty much the same argument presented in court in Austria by local TV network Puls4 when it sued YouTube for copyright infringement. And it seems a provisional ruling in that case basically concurs.

According to Torrentfreak, the court’s provisional ruling concludes: “Through the connections, sorting, filtering and linking, in particular by creating tables of contents according to predefined categories, determining the surfing behaviour of users and creating a tailor-made surfing proposal, offering help etc, YouTube [is more than] a neutral intermediary and therefore cannot claim the host provider privilege”.

The current ruling is not binding, and is likely to be appealed by YouTube if it is approved. But it is a timely endorsement of one of the key arguments presented by the music industry in the safe harbour debate, and one that could set a precedent in Austria that does what article thirteen is trying to do, or maybe even more.



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