Gaia Bellomo - Senior Associate
With two recent judgments of January 20 and 21 2021, the specialized section of the Court of Rome sanctioned two internet service providers, Veoh and Dailymotion, for having broadcast on their platforms television programs owned by RTI (Reti Televisive Italiane) and sentenced them to pay damages for breach of copyright for a total sum of more than 25 million Euros.
This case concerned the unauthorized transmission of videos and clips of some of the most famous programs on R.T.I.'s schedule, such as "Uomini e Donne", "C'è posta per te", "Casa Vianello", "Melaverde".
The Court upheld R.T.I.'s argument that, as producer and broadcaster of the programs listed above, Veoh and Dailymotion infringed its exclusive right connected to the copyright of reproduction and exploitation of its own works (pursuant to Articles 78-ter and 79 of Law No. 633/1941).
The legal issue at the heart of the matter concerns the degree of liability attributable to internet service providers for the unlawful acts committed through the internet by the users of the same platforms: Veoh and Dailymotion claimed, in fact, to be simple "hosting providers" and to play a merely passive role with respect to the content shared by the users, who, by accepting the policy of use of the platform, undertake not to violate the rights of third parties and assume on their own all the liabilities.
In this regard, the European "E-Commerce" Directive provides that the hosting provider cannot be held liable for materials posted by users of the platform provided that it is not aware of its unlawfulness and, as soon as it becomes aware of it, it immediately removes the information and content that infringes the rights of third parties (Art. 14 Dir. 2000/31/EC).
The Court ruled out the merely passive nature of the hosting activities of Veoh and Dailymotion, highlighting the fact that both portals indexed the content uploaded by users by creating thematic channels and associating numerous advertisements to the programs; these activities were not considered compatible with a merely passive role of the platforms which are intended to make a service available to users without intervening. According to the Court, since the platforms’ managers through the activities of indexing and cataloguing s necessarily became aware of the content of the catalogued videos, including the fact that there are works protected by copyright, they cannot be held just as passive holders.
This approach is compatible with the interpretation provided by the Court of Justice with respect to the role of e-commerce platforms, which has held that there is a liability of the hosting service provider where the latter performs content management activity of any kind, such as optimizing the presentation of offers for sale and promoting them.
In this sense, Article 17 of the Directive on Copyright and Related Rights in the Digital Single Market (Directive (EU) 2019/790), soon to be transposed in Italy and not yet in force, now provides direct liability for the sharing activity performed by a service provider which infringes copyright works by the upload of its users and places a stricter duty of care on video-sharing platforms. The European standard now requires platforms wishing to be exempt from liability either to negotiate collective licenses with copyright holders in advance or to comply with certain cumulative requirements consisting of having made best efforts to obtain permission from right holders, to ensure that specific works and other materials for which they have received information are not available for licensing, and to demonstrate that they have acted promptly upon notice to disable access to or remove from the website the works or other materials for which they have received notice and to prevent their future uploading.
Going back to the judgments, a merely passive role of Veoh and Dailymotion cannot be recognized in the case at stake since, according to the Court, the exemption of liability provided for by Article 14 of the Directive could not apply, having RTI previously indicated to the platforms which contents to remove and having the platforms not promptly removed them all.
In this respect, the two judgments of the Court of Rome, which held that it was sufficient for RTI to have indicated to the ISPs the name and title of the program and not the URL (Uniform Resource Locator, i.e. a sequence of characters that uniquely identifies the address of a resource) appears to be inconsistent either with the orientation of the EU legislator, which established that the information provided by the copyright holder to the provider to identify the contents must be relevant and necessary, nor with the national case law, which established that the lack of indication of the URL was not sufficient to trigger the provider's obligation to remove the infringing contents (thus Tr. Turin, Dailymotion v. Deltatv Programs, judgment of 17 November 2017, where it is stated that the failure to indicate the URL is inconsistent because: "...to expect the ISP to "scan" the contents of the materials already uploaded on the platform before they were reported with a specific URL, unjustifiably goes beyond the point of balance, identified above, between the opposing roles and interests of the hosting provider and the copyright holder who complains of the infringement of his rights").
Court of Rome, judgments 20 - 22 January 2021