intellectual propertyInternet liability

Italian court rules on the copyright liability regime of video sharing platforms

An Italian court ruled on the circumstances where copyright infringements are deriving from content shared via video sharing platforms.

The Italian Court of Rome recently ruled on injunctions and compensation for damages due to copyright infringements on rights held by a television production company perpetrated on numerous audiovisual contents made available to the public by two video sharing platforms without authorization of the rights holder.

In light of EU case law on the subject, as well as the recent judgment of the Court of Cassation No. 7708/2019, through which it was recognized the adequacy of the practice of verifying on a case by case basis the position of the hosting provider concerning the violations in question, the Court of Rome recognized how operators of the video-sharing platforms have actually operated some “forms of intervention aimed at exploiting the contents of the individual materials stored by users, operating in general under the forms of control, knowledge, and profiling of data and in an unauthorized manner.”

Accordingly, the Court held that the video-sharing platforms have carried out an activity that was not merely automatic and passive, thus losing their quality of neutral and passive hosting providers and, with it, the possibility of enjoying the liability exemption provided for by the E-Commerce EU Directive.

In the light of the above, the Italian Court ordered the removal of the disputed content from the defendants’ platforms and issued an injunction, accompanied by liquidated damages obligation, for any further future infringement “perpetrated in any form and by any means” to the detriment of the plaintiff television production company.

Moreover, the defendant sharing platforms were also sentenced to pay compensation for the moral damages caused to the plaintiff, equitably settled by the judge in the amount of 10% of the pecuniary damage inflicted on the plaintiff.

This decision once again confirms the view of Italian courts on the difference between “active” and “passive” hosting providers where only the latter can rely on the liability exemption provided by the E-Commerce Directive, considerably narrowing down the scope of the exemption in a tendency by courts to protect rights holders that has been constantly pursued over the last years, and is also reflected in the new EU Copyright Directive.

You may find interesting the article “How the gaming and eSports industry is impacted by the new EU Copyright contract adjustment mechanism” on a similar topic.

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Giulio Coraggio

I am the head of the Italian Technology sector and the global head of the IoT and Gaming and Gambling groups at the world-leading law firm DLA Piper. IoT and artificial intelligence influencer and FinTech and blockchain expert, finding solutions to what's next for our clients' success.

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